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'The Legal Conscience 




"Those of us who followed the un- 
folding of Felix Cohen's powers 
with increasing esteem and admira- 
tion must . . . derive an intensified 
realization of his qualities and their 
enduring fruit from this collection 
of his writings/' 

Felix Frankfurter 


Selected Letters of Felix S. Cohen 

An outstanding lawyer and scholar, 
Felix Cohen was a man of tremen- 
dous vitality* industry, and will, 
with a passionate devotion to truth 
and justice. In the articles and 
speeches collected here, Felix Cohen 
came to grips with central issues of 
logic and ethics as he inquired into 
the foundations of the law and the 
practice as well as the theory of 
democratic society. 

The selections are in three parts, 
representing the three main areas of 
his interest: "Logic, Law, and 
Ethics, 1 * "The Indian's Qtiest for 
Justice/ 1 and **Ttie Philosophy of 
American Democracy/* 

Ttiese essays vigorously espouse a 

functional juritprudence IB which 

the law is seen In broad perspective 

as an instrument of social justice. 

Tiiey argue passionately the view 

thai United Stales Indian policy 

stiowlcl t*e bused on fcte leg! rights 

o iht Indiim, arid ftiey emphasize 

i the ' importance of constant vigi- 

10 protect ttie kga! rigbts of 

jNI*NjfW$^: Ftfife Cofem Bat- 
f*m By mlM&i CVar, NW York", 

<v'lAI JUL 20 197S 

340*1 C678L 65-06738 


The legal conscience, selected 



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Selected Papers of Felix S. Cohen 

Portrait of Felix S. Cohen in the Morris R f Cohen Library at 

City College, New York City. Painting by Joseph Maigulics, 1954, 


Selected Papers of Felix S. Cohen 



Introduction by EUGENE V. ROSTOW 


1960 by Yale University Press, Inc. 
Set in Baskerville type 

and printed in the United States of America by 
the Vail-Ballou Press, Binghamton, N*Y. 
All rights reserved, This book may not be 
reproduced, in whole or in part, in any form 
(except by reviewers for the public press), 
without written permission from the publishers. 
Library of Congress catalog card number: 60-14249 

con amore 

Editor's Note 

FELIX S. COHEN contributed to three broad areas of thought: law and 
philosophy, Indian problems, and democracy in action. The present 
volume contains only a small selection from the vast array of his writings 
in these fields. The original articles and critical reviews chosen to make 
one substantive volume are indicative rather than exhaustive of the scope 
and depth of Felix Cohen's thinking and contribution to the law, both 
ideal and real. 

As a learned man said many years ago, "It is not incumbent upon 
thee to complete the whole work, but neither art thou free to neglect 
it." The editor has tried to follow that Talmudic precept, within the 
limits of time and capacity. If an injustice has been done the author 
and the reader by selection or omission, perhaps time and other publica- 
tions will correct it. 

No selections were made from the published books of Felix Cohen 
(Ethical Systems and Legal Ideals, 1933, reprinted in 1959; Handbook 
of Federal Indian Law, 1941; Readings in Jurisprudence and Legal 
Philosophy, 1951). Nor were there included any of the numerous and 
persuasive briefs prepared by Felix Cohen during his fifteen years on the 
Solicitor's Staff of the Department of the Interior, or in private practice 
(e.g., the New Mexico Voting Case, Trujillo v. Garley; the Arizona Vot- 
ing Case, Harrison v. Laveen; the Idaho Sheep Case, State of Idaho v. 
Lawrence; the Arizona Social Security Case, Arizona v. Hobby; the 
Alaska Fishing Rights Case, Hynes v. Grimes; the long-standing case of 
the Hualpai Indians against the Santa Fe Railroad, U.S. ex rel. Hualpai 
v. Santa Fe RR; the Puerto Rican Agricultural Development Corpora- 
tion Case, Sudrez v, Tugwelf). 

Except for his "Dialogue on Private Property" in the Rutgers Law 
Review memorial issue of 1954, not reprinted here, there are no pub- 
lished materials that indicate his Socratic, albeit gentle method of teach- 
ing law and philosophy at Yale Law School, at City College in New 
York, at Rutgers Law School, and at the New School for Social Research. 
From his voluminous lecture notes, which were meticulously prepared 



prior to presentation, perhaps his contemplated handbook for the teach- 
ing of jurisprudence in the form of dialogues will one day be completed 
by other students of legal philosophy. 

Within each of the three books that constitute this volume, the papers 
are ordered chronologically, a separation being made between essays and 
critical book reviews. In adopting this approach the editor has followed 
the author's own procedure in preparing a collection of his writings in 
1953 for presentation to his children. Beyond adhering faithfully to time, 
the writings so ordered also show Felix Cohen's intellectual development. 
His original interest and training in philosophy, particularly logic and 
ethics, grew into a general interest in ethics as applied to law, then to a 
specific application of ethics to legal problems at hand to conservation 
of human and natural resources, to Indians, to immigrants, to the world's 
dispossessed, to a final synthesis of practical problems with ethical im- 
plications. "What is a Question," written in 1929, has its fruition in six 
questions put to philosophers in 1953, in the brief article entitled 
"Human Rights: An Appeal to Philosophers." "Modern Ethics and the 
Law/' in 1934, finds application in a review of "Civil Rights in Immigra- 
tion" in 1953. The implications of "Transcendental Nonsense and the 
Functional Approach' 1 (1935) are made specific in "Field Theory and 
Judicial Logic" (1950) and then simplified in "The Vocabulary of 
Prejudice" (1953). 

Permission to reprint these and other articles previously published 
is gratefully acknowledged. Full citations are given in the Bibliography, 
Only slight editorial changes have been made in the original texts, 

In a book of long maturation such as this, many people must have con- 
tributed to its final publication. As members of a numerous class, they 
know the extent of their contributions. However, several must be singled 
out for special mention as initiators of the book; Harry Allen Overstreet, 
Felix Cohen's teacher of philosophy at City College, who first expressed 
his own need for a collection of papers in one accessible volume; 
Hundngton Cairns and Ernest Nagel, who through their efforts made 
possible a Bollingm grant in the initial stages o! editing; Sidney Kramer, 
who relentlessly pursued the editor with embarrassing questions on the 
status of the project, but who also offered his wide knowledge and ex* 
perience in the field of books and book publishing; Theodore H. Haas, 
himself an authority on minority problems and Felix Cohen's chief 
collaborator on the Handbook of Federal Indian Law, who was in large 
part responsible lor the excellent bibliography in the Rutgew Law 
Review, reprinted with some modifications here, as well as for counsel 
and encourageme0t during these past six years; Felix Cohen's colleague! 



in the private practice of law who offered material and moral support 
as well as penetrating criticism Arthur Lazarus, Louis L. Rochmes, and 
Richard Schifter; the three able readers who aided in the task of 
selection Betti Goldwasser, David Ryshpan, and Adam Yarmolinsky; 
and members of the younger generation, for whom Felix Cohen collected 
his papers in the first instance, who helped in the menial tasks of 
assembling, cutting, pasting, and typing. 

The editor's indebtedness to Yale University, particularly to its Law 
School and its Press, must be obvious to all. 

Lucy Kramer Cohen 
Washington, B.C. 
April, 1960 



FOREWORD, by Justice Felix Frankfurter xiii 

INTRODUCTION, by Eugene V. Rostow xv 


What is a Question? 3 

Casuistry 14 

Modern Ethics and the Law 17 

Transcendental Nonsense and the Functional Approach 33 

The Problems of a Functional Jurisprudence 77 
The Relativity of Philosophical Systems and the Method of 

Systematic Relativism 95 

Law and Language 1 1 1 

Field Theory and Judicial Logic 121 

Judicial Ethics 160 

Human Rights: An Appeal to Philosophers 171 


Law and the Modern Mind 177 

Bentham's Theory of Fictions and The Theory of Legislation 179 

Civilisation and the Growth of Law 183 

Fundamental Principles of the Sociology of Law 185 

An Introduction to the Sociology of Law 192 

Law as Logic and Experience 196 

An Analysis of Knowledge and Valuation 200 

Legal Philosophy from Plato to Hegel 205 


Anthropology and the Problems of Indian Administration 213 

How Long Will Indian Constitutions Last? 222 
The Spanish Origin of Indian Rights in the Law of the United States 230 

Indians are Citizensl 253 



Indian Claims 264 

Original Indian Title 273 

Indian Self-Government 305 

Americanizing the White Man 315 

Indian Wardship: The Twilight of a Myth 328 



The Socialization of Morality 337 

Government and the Social Contract: Ethical Evaluations in the Law 350 

Colonialism: A Realistic Approach 364 

Mythology of Immigration 384 

The Role of Science in Government 390 

Science and Politics in Plans for Puerto Rico 404 

The Democratic Faith 4 1 7 

The Vocabulary of Prejudice 429 


Government by Judiciary 436 

The Folklore of Capitalism 443 

An Inquiry into the Principles of the Good Society 447 

The Alien and the Asiatic in American Law 452 
To Secure These Rights: The Report of the President's Committee on 

Civil Rights 457 

The Open Society and its Enemies 466 

Law and Social Action 472 

Equality by Statute: Legal Controls over Group Discrimination 478 

Civil Rights in Immigration 481 

BIBLIOGRAPHY of Felix S. Cohen 485 

INDEX 495 



BARRING the rare exception of a seminal paper by the author of trans- 
forming thought, an Einstein or a Mendel (and there does not come to 
mind a comparably influential paper in the sociological domain), for 
their full significance writings seem to require propulsion within the hard 
covers of a book. His Handbook of Federal Indian Law established Felix 
Cohen as the unrivaled authority within that field. It became the vade- 
mecum of all concerned with its problems administrators, legislators, 
lawyers, friends and exploiters of Indians. It was an acknowledged guide 
for the Supreme Court in Indian litigation. This Handbook gave intima- 
tions of a scholarship that had cultural dimensions and a philosophic 
temper* Nor could the discerning reader of his occasional papers in divers 
periodicals, some of them less accessible than law reviews, fail to be struck 
with the freshness and trenchancy of their author's mind. But even those 
of us who felt the impact of these essays and followed the unfolding of 
Felix Cohen's powers with increasing esteem and admiration must, I am 
confident, derive an intensified realization of his qualities and their en- 
during fruit from this collection of his writings. 

The episodic character of his essays and their intermittent appearance 
required that they be gathered into this corpus fully to reveal the breadth 
and depth of his learning, the originality of his thought and the felicity of 
its formulation, as well as his enlistment in humane causes, above all the 
cause of a broadly based civilized community, as reflecting not instinctive, 
however generous, prejudices, but the report of rational inquiry insofar as 
reason can give guidance in analyzing and understanding the bias-laden 
and intractable problems of society. 

We now see that his thinking on technical philosophical problems, 
such as "What is a Question?/' his discussion of so-called technical legal 
questions, his disentanglement of the snarls in which the uninformed are 
caught when confronted with our Indian problems, the analysis of de- 
ceptive prejudices which bar clear thinking about the implications of 



democracy these major concerns of Felix Cohen were for him not dis- 
parate preoccupations nor did they receive unrelated illumination from 
his mind and pen. 

While his thinking was organic, in that he saw interrelations where 
others dealt with discrete instances, Felix Cohen was not a system-builder. 
It is significant that more than once he quoted the wise man who said 
that philosophic systems are true insofar as they affirm and false insofar 
as they deny. He was a follower of Mr. Justice Holmes's conviction that 
the most important feature of philosophic systems is their insights, not 
their logical structure or symmetry. Felix Cohen's devotion was to truth- 
seeking a process never completed not to any ultimates, either his own 
or those of others. He was relentless in applying reason even in areas of 
human concern, where lazier or more dogmatic temperaments denied 
themselves the liberating influence of reason. 

Reading this volume, one cannot forego a sense of sadness that Felix 
Cohen was allowed to run not more than half his course. But the more 
dominant feeling with which one is left, by the expansion of one's horizon 
and the call to honest thinking that we owe to this volume, is gratitude to 
Felix Cohen for the fullness of a lifetime into which he crowded twenty- 
five years of thought and deed, and gratitude to his wife for the great gift 
of this collection. 



FELIX COHEN died at forty-six. But he had already moved mountains as a 
public servant, as a practitioner, and as a law teacher and philosophical 
scholar o law. The publication of his selected papers on jurisprudence 
is an event of consequence, for it will make visible and available to a larger 
public the mind of a major philosopher of law. 

His preface to the book, Readings in Jurisprudence and Legal Philoso- 
phy, by Felix Cohen and his distinguished father, Morris R. Cohen, has 
three quotations which serve perfectly to illuminate the dominant themes 
of his thought about law, and of his life in the law. 

This is the first quotation: "It is not in heaven, that thou shouldst say, 
who shall go up for us to heaven, and bring it unto us, and make us hear 
it, that we may do it? Neither is it beyond the sea, that thou shouldst say, 
who shall go over the sea for us, and bring it unto us, and make us hear it, 
that we may do it? But the word is very nigh unto thee, in thy mouth, and 
in thy heart, that thou mayest do it." 

Teaching, thinking and writing the occupations of the scholar were 
irresistibly attractive to Felix Cohen, But they were for him paths, among 
other paths, to the single dominant goal, the moving passion of his unified 
and dedicated life. Felix Cohen was a man of justice. He viewed law as 
the great instrument of justice. Because he was by temperament and in- 
heritance a scholar and a philosopher, he could not refrain from writing, 
teaching, and thinking about law in the orderly ways of the scholar and 
philosopher. But he refused all our pleas, over a period of many years, 
that he give himself over entirely to the intellectual life, central as it was to 
his being. He could not leave to others the fight for justice for the Indians 
and for the immigrants, those great and humane causes to which he made 
so remarkable and so effective a contribution. 

Both the scholarly and the practical aspects of Felix Cohen's work in 
law represent the same noble thought: the truth is with us, in our daily 
bread* and it Is something to be done, not said. Man's duty is goodness. 



And the men of law must forever labor to make the measure of ethics the 
measure of law. They must labor in the courts and legislatures, on the 
soap boxes of political campaigns, in the libraries and classrooms of uni- 
versities, by the quiet hearths of their own homes. Felix Cohen could not 
ask, "Who shall go up for us to heaven, and bring it unto us." He knew that 
each man, in the tasks that fall to his hand, must himself seek out the way 
of goodness, and do it. 

But Felix Cohen realized also that his own practical struggles for justice 
were fought on various sectors of an all-embracing battlefield. To him, 
more clearly than for most men, every particular was an aspect of the 
universal. The second quotation in his preface is from Holmes: "To see 
so far as one may, and to feel, the great forces that are behind every detail 
makes all the difference between philosophy and gossip." No phase of his 
work was gossip. All of it stemmed from a deeply conscious, profoundly 
considered analysis of what law is, and what it is for. He led his students 
and readers into every corner of the temple, examining and testing the 
beams and the buttresses, the glowing windows and the unswept cellars 
too. Where study in the light of ultimates revealed the need for change, 
he fought for it, to free us, as he said, of "ancient cruelties," and to help 
man "escape the barbarisms that the future pins to most human hopes." 
He never forgot that the temple he served is the sum and symbol of all 
human aspiration. When he proposed change, it was that the temple might 
better and more truly serve the great dreams which give life and meaning, 
beauty and power to our civilization. His writing and teaching, however 
technical, were always focussed on the problems of ethical choice which 
lie behind every conflict in social relations, He was ever conscious of the 
necessity for logic for "rigorous reflective thought," as he wrote, rather 
than "hit-or-miss trial-and-error." But this emphasis in his work was not 
mere aesthetic preference. It represented the knowledge he shared with 
his father, whom he loved with such rare devotion, that civilization, rep- 
resented by law, its central and all-embracing institution, is a value men 
can save from evil not by their passive good will alone, but only by the 
hardest kind of thought and struggle. 

Felix Cohen was a teacher of power and purpose. He talked with his 
students as equals. He left them with a renewed awareness of the issues 
in law that spell the difference between life and death. For twenty-seven 
years, his writings have been a force in the world's literature of legal 
philosophy and jurisprudence. In my judgment his has been, and will 
remain, the best balanced and one of the most creative voices in the 
literature of what is loosely called American legal realism. In seeking a 
just measure of freedom for the law makers, he never failed to give reason 



its due, and never sought to put impulse on the bench. In urging reform, 
he never forgot the boundaries which history sets for all our efforts, nor 
the risk of losing a large battle by winning a small one. He championed 
the cause of ethics, and thus helped to correct a serious failing in the 
American realism of the previous generation. But his stress on the ethical 
content of law, and its primary importance, did not lead him to under- 
value the role of theory of logic, that is in the legal process. 

The third quotation from his preface is older still: "The day is short 
and the task is great. It is not incumbent upon thee to complete the whole 
work, but neither art thou free to neglect it." The greatest force in life 
is the image and example of a good man. Felix Cohen was governed by 
conscience. Every fragment of his work was part of "the great task" of the 
prophet. He did not complete the whole work, for it will never be com- 
pleted. But he never neglected it. On the contrary, he gave himself to 
the cause of justice with a skill, a fervor, and a degree of selflessness which 
those of us who watched and marvelled can never forget. 


Logic, Law, and Ethics 

What is a Question? 

"WHAT is a question?" is a question which seems to have been almost 
totally ignored by logicians. The problem is, however, about as important 
for rational thought as the more common inquiry into the nature of 
propositions, assertions, or judgments. And if the former inquiry does, 
in its claim to significance, presuppose a solution, so too does the answer 
to the latter. That is to say, in order to answer the former question we 
must assume that it is a question, just as we must assume that any real 
definition of a proposition is a proposition. 

In neither case, however, does this consideration involve a vicious 
regress. And if our question can be answered, the ultimate value of such 
a solution to philosophy must be considerable. For it is obvious that 
many apparent questions lack significance, that for want of recognizable 
criteria of interrogatory significance much philosophical discussion con- 
sists of a useless attempt to answer meaningless questions, that a good 
deal of superficial and unjustified support is given to the skeptical or 
inquiring attitude as opposed to the dogmatic because of a failure to 
realize the intellectual responsibilities determined by the logical presup- 
positions of significant questions, and that a cloud is thrown across many 
philosophical problems by a failure to analyze the general relation of a 
question to an answer. 

A question is not, as some logicians imply by their treatment or lack of 
treatment, simply a psychological provocation, on a par with pin-pricks 
and miracles, to the formation of assertions. If it is true that questions are 
valuable because they lead to judgments, it may also be true that judg- 
ments are valuable because they lead to inquiries. Perhaps it is an undue 
preoccupation with rats in mazes which leads some of us to assume that 
thought is valuable only as a method of getting out of difficulties, a 

Published in The M<mi$t 


"means of converting the dubious into the assured, and the incomplete 
into the determinate/* l In our intellectual mazes there is wonder and 
adventure more thrilling, frequently, than the cheese which lies outside 
the cage. Those who have formulated the world's problems have more 
often deserved the name "philosopher" than those who have settled 
them. There is thus a certain superficiality in the ethics which regards 
thinking as wholly pragmatic and concludes that the question is the 
beginning of thought, important only as an instrument for attaining 
the end of thought, the judgment. Some such valuation seems to be 
at the basis of the logician's exclusive concern with propositions and 
his indifference to questions. 

But we trespass upon the domains of psychology and ethics. Whatever 
the reason for its neglect, and whatever the value of its cultivation, there 
is, in the analysis of the question, a virgin field for logical exploration. 

The question has usually been described as a request for information. 2 
But while it is true that we generally ask questions in order to get in- 
formation, it is also true that certain questions (e.g. rhetorical questions) 
are presented with no intention of receiving answers. Other questions 
(e.g. "What is the largest number?") have no answers. And, finally, the 
idea that a question is a request for information does not in the least 
explain the nature of questions. If I ask who discovered America, I am 
none the wiser as to what I have done when told that I have requested 
information. What information? Why, of course, information as to who 
discovered America, In short, our desire to receive an answer when we 
ask a question is, like our desire to be believed when we assert a proposi- 
tion, neither universally present nor in any way constitutive of the mean- 
ing or content of what we ask or assert. What is it, we must go on to 
inquire, that we want believed? What is it that we want answered? 

On another common view, a question is simply an ambiguous as- 
sertion. But clearly, Spencer's definition of evolution, however ambiguous, 
is not a question. If an ambiguous assertion is a sentence which has more 
than one meaning, then a question is not such an assertion. For many 
questions have only one meaning, and, on the other hand, many sentences 

i Dewey, Experience and Nature, p. 67* Professor Dewey, of course, is not responsible 
for the ami-intellectuallst morals which have been drawn from this doctrine. 

s, This is the explanation offered in Clauberg and Dubislaw, Sy&tematischcs Wdrter* 
buck der Philosophic; Btsler, Hand*w$rterbuch der Philosophic; and Eisler, Wftrter* 
buck der philosQphi$chn Begriffe* In the last named work the names of Bohano, 
Natorp, Jerusalem,, Wundt* and many others are adduced in favor of this position. The 
definition of "Frag*" given by Upp* is characteristic: "<&?r Wun$ch %u einem Urt&ll m 


that have several meanings are not interrogative. If by "ambiguous as- 
sertion" is meant some kind of proposition, then no such assertion can 
be a question, since every proposition is either true or false and no 
question is true or false. 

Finally, a question, like a proposition, is not simply a psychic event or 
a physical object it is a logical entity. Marks on paper, sounds in the 
air, activities of brains, and incidents in psychical history cannot be true 
or false or have true or false answers. They are objects or events, to be 
evaluated in terms not of logic but of ethics. It is only with the meaning 
of these signs, the content of these thoughts, that logic is concerned. 
Unfortunately we have not two words to denote these different entities. 
Logicians distinguish between a statement (or judgment or declarative 
sentence) and a proposition (or assertion). The one is a human act or a 
symbol; the other, a logical entity, a meaning. But the word question 
is used indiscriminately to refer on the one hand to the act of question- 
ing or the verbal symbol, and on the other hand to the content of the 
thought, the meaning that is entrusted to and communicated by a con- 
ventional language sign. From the confusion of these two entities no 
adequate consideration of our problem can emerge. We shall therefore 
use the word question to denote exclusively the logical entity, and refer 
to the act or symbol embodying this as an interrogation or interrogative 
sentence. It is with the former entity alone that we are directly con- 
cerned. And with these qualifications we return to our original problem, 
"What is a question?" 


A question, it is submitted, is simply a prepositional function (or 
prepositional form). "What is the sum of 3 and 5?" seems to be identical 
in logical content with ' 4 x == 3 + 5." Whatever difference appears be- 
tween the two phrases seems to reside merely in the psychological 
connotations commonly adhering to the different styles of expression. 
That is to say, we generally want an answer when we ask a question, 
although we frequently put a prepositional function without any de- 
mand that its values be supplied. But this matter of compulsive flavor, 
in which our two expressions may find a shadowy distinction, does not 
go to the logical content of either. 

As a logical entity the question is the clear embodiment of the char- 
acters by which the prepositional function has been defined. It is neither 
true nor false, while its values (answers) are true or false. It is of the 



form of the proposition, yet differing from the latter by the substitution 
of a variable for some constant. Who, which, what, when, where, why, etc. 
are the variables of every-day speech. 

As in mathematical logic, these variables have a dual use. As "real 
variables" they appear in the role of interrogative pronouns or adjectives. 
As "apparent variables" they are termed relative pronouns or adjectives. 3 
Thus the existential affirmative, (3x).<x, is simply "There is something 
which has the property <j>" Just as the <x, taken by itself, is a real 
variable, a prepositional function, so the relative clause in our translation 
is, when independent of the main clause, a question. The universal 
affirmative, (x).<x, or "Everything is a thing which has the property $" 
may be similarly analyzed. So we may go through the uses of the 
propositional function as an independent and as a dependent entity, and 
find exact, though frequently cumbersome, translations in the questions 
of common speech. 

On this analysis, an answer to a question must be simply a proposition 
which is a value of the given propositional function (or, by ellipsis, a 
constant term which is a value of the variable in this function, the 
difference between these two views is unimportant for our present 
inquiry), 4 A true answer is simply a value that is true. We shall defer 
further consideration of the relation of questions and answers to another 

There are some questions, finally, that do not possess in so obvious 
a form as those thus far considered the character of the propositional 
function. Such in general are the questions that contain no interrogative 
pronoun or adjective (e.g., "Is Caesar dead?", "Caesar is dead?"). In what 
way, we may ask, does the logical entity denoted by these sentences 
differ from that which is denoted by the related affirmation "Caesar is 
dead," Again we must dismiss from consideration such psychological 
data as our desire for information in the former case and our belief m 
the latter. Considering simply the content of our thoughts, we find, I 
think, that in the former case there is no assertion, but simply the 
ascription to a specified (but unasserted) proposition of an undetermined 
truth-value. Whereas in the questions previously considered, a specified 

3, For example, in "What is red?" what appears as a real variable and produce* a 
question, a prepositional function, In "What is red is colored," we find an apparent 
variable (what equals whatever), producing a universal proposition, The two uses of 
what are more easily confused in mathematics and logic than in ordinary conversation, 

3, The word information fa t I think, very significant. Even In its purely psychological 
aspect, indeterimnatlon or doubt is not, as is often maintained, a wavering between 
different certainties, but the grasping of an incomplete form, a variable. 



term was the variable and was denoted by a special interrogative word, 
now the variable is the truth-value, or validity, of a proposition. There 
is obviously no logical reason why there should not be an English word 
representing the variable whose values are is and is not. Were that the 
case, we should represent our question as "Caesar blankety-blank dead?" 5 
But this fortunate grammatical omission in the English language should 
not obscure the fact that questions of this sort are essentially similar 
to those already considered, that they are in fact a sub-class of preposi- 
tional functions, in which a variable taking the two values truth and 
falsity, or fact and not-fact (commonly represented, in the answer, by the 
words yes and no) appear. The identification of questions with preposi- 
tional functions is thus complete. 


This process of translation is not entirely of one-sided value. For if it 
offers us a clue to the logical nature of the question and, as we shall 
later try to show, to the analysis of interrogatory significance, it provides, 
on the other hand, an intelligible and clarifying interpretation of the 
prepositional function. 

To interpret "x is mortal," to mean, as Russell suggests, "anything 
is mortal" is either a confusing misuse of terms or a downright fallacy. 
"Anything is mortar* in common speech means simply "everything 
(distributively) is mortal." In negative statements, anything frequently 
means something. Thus "I do not think that there is anything which is 
mortal" means exactly the same thing as "I do not think that there 
is something which is mortal.' 1 "Everything is mortal," and "something 
is mortal" are both propositions, and neither is what we mean by "x is 
mortal," which is not a proposition at all. 

This misinterpretation of the prepositional function cannot affect the 
validity of inferences which formal logic makes concerning the entity. 
It has, however, seriously clouded the philosophical implications of an 
exceedingly fertile concept. For when <x is interpreted as "anything 
has the property </' it is only natural to confuse the proposition which 
these words commonly denote with the prepositional function they are 
meant to denote. 

Thus in the Principles of Mathematics, Russell refers to <x sometimes 

5, This "blankety-blank" Is what Professor Sheffer calls the "validational variable/' 
See* the article "Notational Relativity" in the Proceedings of the Sixth International 
Congress of Philosophy, My indebtedness to Professor Sheffer at other points in this 
paper win be apparent to those who are familiar with his work. 



as a proposition (p. 92, 90), and at other times as prepositional function 
(p. 13, 13; p. 92, 90; p. 93, 92). In regard to the meaning </>xo^x, 
(<x implies ^x) the confusion is dizzying. On pages 38 (41) and 91 ( 89) 
this is a proposition. On pages 38 ( 42), 87 ( 83), 89 ( 86), and 92 ( 89), 
it is a prepositional function. 6 

In the Prindpia Mathematica (first edition), an attempt is made to 
remedy this confusion. A new concept, intermediate between the prepo- 
sitional function and its values, is introduced. This is the so-called 
ambiguous denotation of a value. <x is no longer a prepositional func- 
tion, nor is it a particular value of a function. It denotes ambiguously 
a specific value, but since we do not know whether it refers to <>a, to 
<b, or to <c, we can assert it when and only when every such value is 
true. <x, then, is equivalent to (x).$x, but not identical with it. 

This doctrine, it appears, is based upon a fundamental confusion be- 
tween the symbol and the thing symbolized. The prepositional function 
is not an ambiguous or indeterminate symbol. It is a symbol of an 
objectively indeterminate (i.e. variable) thing. But this new 0x is not a 
definite symbol of an indeterminate entity. It is itself an ambiguous 
symbol. As such it has no place in logic. Logic does not deal with the 
symbols in which it is expressed. Expressions like "He is mortal," (where 
the "he" has no visible reference), and "Interest comes," (where it is not 
known whether the sentence is in English or Latin), as well as most 
typographical errors and partially inaudible remarks, are strictly cognate 
with the "assertion of an ambiguous member" of the values of a preposi- 
tional function. As symbols they are no part of the subject-matter of 
logic. The things they symbolize in their various interpretations are 
either prepositions or prepositional functions, and there is no inter- 
mediate logical entity to be described by the word "any." 

In the second edition of the Prindpia Mathematica* Russell and 
Whitehead show that what was previously asserted in the form of <jx 
(where ^ is a constant), may be asserted in the form of the universal 

6. When we get rid of the word any and translate prepositional functions as qucs* 
tions, the grounds for this confusion vanish. (X),<XD^X or "Everything which has the 
property $ is a thing which has the property &" is a universal proposition, which can 
no longer be confused with the propositional function, $x;>^3c or *'What has the prop* 
erty ^ if it has the property $?'* Russell's argument that the latter expressiew must 
contain two variables thus meaning, "What has the property ^ if what has the 
property #?", a double question is based upon a confusion of logic and typography. 
The fact that the symbol x appears twice in the expression does not prevent the sign 
from meaning the tame thing in both appearances, We might, if the type-setter were 
willing, so arrange the expression that the x appeared only once. A similar confusion, it 
may be noted* appears in the primitive proposition * 1,4 of the Prindpia Matfiematica, 



proposition, (x).<x, 7 and state somewhat cryptically that the "assertion 
of a propositional function" is no longer needed. We may infer, I think, 
that the reason it is no longer needed is that it does not exist. One cannot 
"assert" a question. 

We shall not pursue any further the fatal errors consequent upon the 
mistranslation of the propositional function in terms of "any," al- 
though an interesting chapter might be written on the manner in which 
the ambiguous word "any" has been used to bridge the gap between 
universal and existential propositions. 8 It is sufficiently evident from 
the preceding considerations that a propositional function cannot be 
translated by a universal or existential proposition (through the use of 
the word "any"), or by any expression that ambiguously refers to one 
proposition or another. The difficulties and errors attendant upon any 
of these interpretations are swept away instantly when it is recognized 
that the propositional function is identical with the question, "x is 
mortal," stripped of its text-book disguise, is simply the familiar ques- 
tion, "What is mortal?" On the other hand, it is only by the converse 
translation that we recognize the logical content of the interrogation, 
the instrument and the resultant of judgment, the unfolder alike of 
destiny and human ignorance. 


The foregoing considerations may be viewed as defining question and 
answer in the widest sense of the terms. Thus every propositional func- 
tion is a question, although it may be indeterminate or insignificant, and 
every value of such a function is an answer, although it may be false. 
This terminology does not constitute an untoward strain of language, 
since we do commonly apply these adjectives to certain questions and 
answers. And in any case, it offers a clear verbal framework for the 
essential problem that remains to be considered. What questions are 
significant, and what answers are correct? 

7. In ordinary mathematics a similar ambiguity of symbolism demands a similar 
remedy, "Sin^ + cos*x = i" is generally construed as a universal proposition, and 
4 'sin*x= i*' as a question. The former expression may be interpreted, however, as a 
question, and the latter as a proposition. In that case the question is indeterminate and 
the proposition false. In order to get rid of this ambiguity it is necessary to distinguish 
between the two uses of x (or, in translation, between the interrogative and the relative 
pronoun). This can be done by writing universal propositions consistently in the form 
(x),#x,~- in this case, (x).sin3 f cos*x= i, and propositional functions in the form #x. 
A change in the form of the equality sign sometimes serves the same purpose. 

8. Cf. Principia Uathcmatka, pp. 19-20 (in both editions). 



By a significant question, I mean a question to which some proposition 
is the true answer. Two things are thus demanded for interrogatory 
significance. In the first place, there must be at least one true proposi- 
tion that is a value of the given prepositional function, and in the 
second place, there must be not more than one such proposition. Ques- 
tions which violate the former condition may be appropriately called 
invalid. Thus "What cat has eight lives?", 9 "Who discovered America 
in 1491?", and "x-o = i" are typical examples of invalid questions. We 
may, without committing any logical fallacy, ask such questions as: 
"When did you stop beating your wife?", "Where is the highest good?", 
"Where is the mind?", and "What are the ultimate simples of sense- 
experience?" But we do fall into error when we assume, (as we usually 
do when we ask questions), that such questions must have true answers, 
and ignore the fact that to justify the validity of these questions it is 
necessary to show that the person addressed has stopped beating his 
wife, that there is a highest good, that the mind exists in space, that 
there are elements of sense-experience which are ultimately simple, etc. 

Every prepositional function lays down a range of significance de- 
termined by the possible values of the variable term, and an inner 
range of truth further determined by the constant terms of the expres- 
sion. Thus the presumption of validity in a question is an assumption 
that this latter range (and therefore the former range as well) contains 
at least one member. Such an assumption will be true or false. When 
false, any answer to the question must be incorrect. The chief usefulness 
of questions (apart from riddles) arises from the fact that we can 
sometimes know that such a value exists without knowing what it is. 

The second condition of what we have called a significant question is 
that it have not more than one true answer. Questions which violate 
this requirement may be called indeterminate. Thus, "Who did what 
when?' 1 , and "1*= i," are indeterminate and therefore non-significant 
(in our defined sense of that word, we do not mean to imply that 
invalid or indeterminate questions have no meaning)* To such questions 
we may indeed give true answers, but we can never give the true answer 
to any of them. Thus in claiming significance or simply determinate- 
ness for a given question, and we do this whenever we attempt to 

9, It might be supposed that "No cat haa eight lives" it a correct answer to thi 
question, But although this may be t very appropriate retort to an invalid question, 
it i* entirely difierent in form from a real answer, being a negative universal, while 
the values of the proportional function advanced are all particular*. An oversight at 
this point tempti the inference that since one cat ha$ one more life than no cat, one 
cat ha* nine livet* 



show that one answer is incorrect by demonstrating that a materially 
different answer is correct, we are under the responsibility of showing 
that not more than one true proposition is a value of our prepositional 
function. The relevance of this principle to philosophical discussion is 
obvious. "What is the first mover?" in a world where rest and motion 
are relative to variable coordinates, is the type of a great class of questions 
which lead inevitably to error when they are regarded as determinate. 
The fundamental question of ethics, "What is the good?" has regularly 
been treated as if it were (abstractly) determinate. Thus the more basic 
question of whether good is a constant or a variable (similar to mine) 
is never clearly faced and always unconsciously answered. 

At this point a distinction of crucial importance must be made between 
questions that are indeterminate and those that are ambiguous, apply- 
ing the latter predicate to questions which have no uniquely determined 
meaning. An indeterminate question we have seen to be a definitely 
denoted prepositional function which has more than one true value. 
But an ambiguous question is not, in the logical sense, a question at all. 
It is rather a group of questions, or, more accurately, an ambiguous 
symbol, a verbal matrix from which various questions may be derived. 
In asking whether certain things are real or practical or right, I may 
have in mind something quite different from what another person under- 
stands by the words. What would constitute a correct answer to the 
question in my mind may be a false answer or no answer at all to the 
question in my neighbor's. But both of these questions may be determi- 
nate and significant. Ambiguity, then, is something which attaches not 
to the idea which a set of words suggests, (and it is with the analysis 
of such ideas that we are concerned), but to the set of words itself in so 
far as it suggests various meanings. 

That words and sentences, declarative or interrogative, do convey 
different meanings to different people and even to the same person in 
varying circumstances is too obvious a fact to be labored, yet the ignoring 
of this fact is perhaps the most fertile source of philosophical and non- 
philosophical argument* Bertrand Russell somewhere says that no two 
philosophers ever understand each other. If one may confess to an under- 
standing o that remark, it appears to be very near the truth. Certainly 
we shall never bridge the chasms about a human soul with our primitive 
marks and noises, but if there is to be any rational intercourse between 
man and man, we must somehow approach the ideal of unambiguous 
speech. And to do this we must remember that the ideal is beyond the 
language that pursues it, 

Ambiguity is as prevalent and as dangerous in our interrogations as 



in our statements, but the problems which it raises in this connection 
are problems o thought and human intercourse in general, and as such 
are irrelevant to a study of the logical nature of a question, except 
in so far as they help to explain what we are not talking about. 10 If, as 
Professor Whitehead hopes, we shall find real propositions in the king- 
dom of heaven, there too shall we find real questions. But it is the divine 
task of the logician to examine these ideal entities that we may better 
discern meaning and direction in the world of human thought. The 
significant question is, like every object of reason, an abstraction from 
actual experience. 

The possibilities of analysis and classification which unfold with the 
realization that questions are variables whose values are answers go far 
beyond this problem of interrogatory significance. In particular some 
light is thrown upon the nature of complexity in questions. In the days 
when logic was thought of as a branch of ethics, the text-book writers 
used to tell us that we ought to phrase our inquiries so as to ask one 
question at a time. By this they meant, sometimes, that we should avoid 
ambiguous speech, at other times, that we should not ask questions in 
which assumptions are already implicit. The former condition is perhaps 
psychologically unattainable, although there are important differences 
of degree in its approximation. The latter is logically impossible, since, 
as we have seen, although no question as such makes an assumption, 
every question in so far as it demands a or the true answer does make 
definite assumptions. 

But there is a third more important dimension of complexity in 
questions, namely that which relates to the number of variables in 
a given propositional function. In common speech, questions containing 
more than one variable are usually indeterminate, and such questions as 
"Who's who?", "What's what?", etc, are frequently convenient precisely 
because of their wide range of true answers. But there is no logical 
correlation between complexity and determinateness or validity. We 
may have double questions (i.e. propositional functions containing two 
variables) which are valid and determinate, e*g. "Who discovered 
America in what year?", "Did Caesar kill Brutus or did Brutus kill 

10. The distinction between indetermfnatenew and ambiguity is paralleled by the 
more obvious distinction between invalidity and mtninglncii. A symbol which has no 
meamng,~~eg.* Wittgenstein's creation, "Is the Good more or less Identical than the 
Beautiful?" is not, in the logical sense, a question, But a question may have no true 
answer, In other word$ the predicates meaningful, meaningless, ambiguous, and un- 
ambiguous refer to Interrogations and Interrogative sentences, but not to queiUoni. 
Mctninp do not have meaning, 


Caesar?" The same is true of questions of higher degree of complexity. 
In the analysis of complex questions and of their relations to simple 
questions and to answers, many points of interest are raised. Their dis- 
cussion, however, would take us beyond the bounds of space and subject- 
matter we have set. 


THE WORD casuistry is commonly used in two senses. In the first place 
it may mean simply the development of moral principles through their 
application to special cases. In the second place it may mean applied 
morality which has for its purpose the justification of questionable ac- 
tivities and which proceeds by discovering subtle and hypocritical ex- 
ceptions to general rules of conduct. That there is usually no distinction 
drawn between these two uses of the word is a consequence of the 
common belief that morality is incapable of rational treatment, being 
either a matter of individual taste or a subject upon which some 
authority, either God or conscience, has given us the last word, and 
upon which further discussion is therefore useless and dangerous. 

In its primary sense, as the particularization of moral rules, casuistry 
is the natural culmination of ethics. Although treating of the application 
of ethical judgment to individual cases, it deals also with general or 
universal propositions, and such judgments can be distinguished from 
those of general ethics only by a comparative narrowness of scope. Thus 
the proposition that lying is bad would be regarded as ethical, and 
the proposition that lying to save a friend's life is good would be re- 
garded as part of casuistry. Casuistry, then, stands in the same relation 
to ethics or moral philosophy as astronomy does to physics. In the 
absence of an adequate general doctrine of ethics it must naturally 
find itself more akin to pre-Ptolemaic astrology than to modern astron- 
omy- To this internal dependence upon a discipline which has scarcely 
emerged from the pre-seientific stage, one may attribute a good deal of 
the dishonor into which the word casuistry has today fallen. 

Casuistry has usually flourished at times when a generally accepted 
system of ethics has demanded development along new lines because 
of changing economic, political, or intellectual conditions. In the West 
casuistry has operated particularly upon the transplanted stoic morality 
during the early Roman Empire, upon the ethical code of the Pentateuch 

Fubliahed in Encyclopaedia of the Social Science 1930. 



in the Talmudic and post-Talmudic explication of the exiled Jews and 
upon the received Christian morality during the period when the agri- 
cultural organization of European society was breaking down. In the 
Summae casuum conscientiae (Casebooks of conscience), written from the 
thirteenth to the seventeenth centuries and meant especially for use in 
the confessional, the process of particularization in ethical doctrine was 
carried to an extreme point. Since Kant, however, there has been a 
strong tendency, outside of the Catholic church, to restrict academic 
inquiries in morality to a more general and abstract plane. 

Close analogues of these casuistical processes are to be found in the 
development of Roman law, which from the fifth century B.C. to the 
sixth century A.D. was considered to be essentially an interpretation of 
the Twelve Tables and as well in the judicial development of American 
constitutional law. Such decisions as those ruling that the "due process" 
clause of the constitution forbids the legislative limitation of working 
hours for bakers to ten per day but does not forbid the limitation of the 
miner's working day to eight hours suggest that there is nothing 
peculiarly mediaeval, religious, or scholastic in the difficulties and con- 
comitant dangers of casuistry. 

Today a growing appreciation of the dependence of ethical values 
upon factual conditions and a general disregard for the element of 
value which cannot be stated in terms of existence have relegated 
modern casuistry to an unavowed place in the literature of the social 
sciences. Except for the fact that ethical discussion is nominally dis- 
avowed, psychologists who tell us how we ought to bring up our children, 
economists who tell us how we ought to adjust the currents of distribu- 
tion, political scientists who describe our duties to the state, and jurists 
who tell us how people and, in particular, how judges ought to act, are 
all continuing a discipline which is coeval with man's command over 
rational method and interest in conduct. 

The methodology of casuistry has commended itself to modern law 
teachers and sociologists as in other centuries to the Jesuits and 
Talmudists, because of the ease with which concrete problems are 
assimilated and vitalized in the student's experience. The difficulties of 
casuistry on this plane are, in a measure, the difficulties of all scientific 
method. On the one hand, those who have looked upon the decision of 
particular cases as a merely mechanical application of general principles 
have run into (or illicitly evaded) the logical difficulty that particular 
conclusions cannot be derived from purely general premises a difficulty 
which shows itself in a question that is always relevant and usually 
critical and never answerable on the sole basis of general rules, namely: 


"Which of several admitted principles is, in the light of all circum- 
stances, most applicable to this case?" On the other hand, those who 
have regarded the decision of special cases as a problem independent 
of general principles and students of the case method have regularly 
professed a nominalistic disregard of abstractions have run into the 
more serious difficulty that no unified science and no inference is possi- 
ble on the sole basis of individual cases. Any two cases, in ethics as in law, 
can be distinguished, and a refusal to enter the realm of abstractions in 
an open and critical spirit for the valuation of different "elements" of 
"principles" has led either to the differentiation of cases on trivial 
grounds or to the subsumption of cases demanding different treatment 
under a single rubric. It is on these points that the most important 
criticisms have been directed against casuistical method, whether em- 
ployed by Greek sophists or by students of the common law, by Jesuits or 
by the religious teachers of the Protestant, Jewish, or Mohammedan sects. 


Modern Ethics and the Law 3 


The term "ethics," to many lawyers and judges, carries the flavor of a 
trade code. The precepts of "legal ethics," like the precepts o those moral 
codes drawn up, from time to time, by dentists or real estate dealers, 
treat of the common questions that arise in the course of a tradesman's 
dealings with clients. 

These questions may become rather involved when more than one 
client deals with the same tradesman, or when more than one tradesman 
deals with the same client. But the basic purpose of these codes is simple 
enough. Private profit is the chief aim of any trade. Some types of con- 
duct practiced by certain members of a trade lessen the income of other 
members more than they add to the income of those who indulge in these 
forms of practice. Such types of conduct are thought, by most members 
of the trade, to be bad. 

Price cutting is as clear a case as any. What the public gains through 
price cutting the trade as a whole loses, although, to be sure, some mem- 
bers of the trade may lose less than others and some may even gain. 
Price cutting, in its many forms, is therefore thought to be a prime evil, 
against which any trade will protest in language laden with the solemn 
weight of ethics. 

Other trade habits that tend to decrease the total profits of the trade 
demand the same treatment. One of the chief assets of many trades is 
the respect and trust of the public. To squander this asset without gain- 

i. In view of the fact that my published work on this subject has called forth, from 
an esteemed judge, the phrases, "mental gymnastics," "pedantic quibble," etc. (Sec 
Knox, Book Review, 5 Brooklyn L, Rev. 366 [1933]}, I have tried in this paper to restate 
in simple language certain points which are more fully treated in the volume re- 
viewed. [Ed. note: The "simple language" referred to meant words of one and two 
syllables only, a restriction in writing that caused "mental gymnastics" and much 
amusement to the author,] 

Published in Brooklyn Law Review, 1954. 


ing a fair return injures the trade as a whole. To give away trade secrets, 
to decry or obstruct the work of a fellow tradesman, to break faith with 
a client in a manner that reflects upon the entire trade, all these acts are 
likely to lessen the total income of the trade. They are therefore con- 
demned by the trade as a whole, unless group feeling within the trade 
is too weak to call forth group action. Since the group feeling of lawyers 
is very strong, the lawyer's code of ethics is somewhat more detailed, 
and conforms rather more closely to the needs of the trade, than the more 
sketchy trade codes of other tradesmen. But the fact remains that legal 
ethics centers about the problem of how to secure a larger income for 

The announced precepts of legal ethics have little to do with the basic 
values of life or with the basic problems of the present social order. 
Indeed many lawyers of the highest standing are inclined to believe that 
there are no basic values of life or basic problems within the present 
social order, and that thought on such matters is either useless or worse 
than useless. From this point of view, there can be no sound basis for 
passing moral judgments upon the work of lawyers except in terms of 
the canons of legal ethics. To judge a lawyer's worth in terms of the social 
values which he serves to uphold or defeat is felt to be neither just nor 

Even those lawyers who do believe that life contains basic values, and 
that the social order which happens to exist has some defects and presents 
some problems, are likely to feel that these concern the lawyer only in 
the way they concern other people, and that the lawyer, as such, has no 
civic duties other than those which fall equally, like the rains of heaven, 
upon the lawyer's neighbors. Indeed the lawyer who carries to the court- 
room the woes of a troubled world is not likely to prove as fast a runner 
as a fellow craftsman who enters the race for "success at the bar" more 
lightly equipped. 

Judges, no less than lawyers, are prone to view the wider problems of 
ethics as matters beyond their proper ken, For, in the first place, the 
judge is apt, In this country at least, to bring to his task a lawyer's 
training and the views to which that training leads. The lack o moral 
doubts, which h so helpful to the lawyer in practice, i$ thus carried over 
to the bench. And this freedom from moral doubts is most surely induced 
and nourished by a lack of concern with ethics, for nothing so gravely 
threatens the moral dogmas by which we live as the study of ethics. 

There is no doubt a second factor which leads judges away from 
the study of ethics. Judges want their conduct to be free not only from 
their own doubts, but also from the doubts of others. The judge is apt 



to feel that ethics is a risky affair, and that the less he has to do with 
questions about which men have argued for many ages the less likely will 
people be to cast doubts upon the judgments he utters. The slot machine 
doctrine of the judge's function, which teaches that judgments emerge 
from judges as gum comes forth from a vending machine, implies that a 
judge's beliefs about ethics have nothing to do with his work on the 
bench. This doctrine offers much aid and comfort to judges in moments 
of social stress. There is no use in kicking at a slot machine. Complaints 
must be referred to the owners. Public protests against the things that 
judges do or say must be referred to the proper law making bodies of 
state or nation or, when these bodies refuse to take the blame, to the 
Founding Fathers, who, being dead, pay even less heed to public clamor 
than do living judges. Why, indeed, should any judge defend his judg- 
ments on grounds of ethics when it is so easy to take refuge from the 
shafts of moral protest by hiding behind the doctrine of the slot machine? 
Ethics, shunned alike by lawyers and judges, looks today for friends 
among the students and teachers of law. But they are, in the main, too 
busy to be disturbed. Some of them are busy counting cases. Others are 
trying hard to find out where cases come from and where they go to when 
they leave the courtroom. There is a widespread feeling among legal 
scholars that until this task is finished it is too early to pass judgments 
of good and bad upon legal cases and legal doctrines. Those who take 
this view are not disturbed by the prospect that the legal cases and 
doctrines to which they have addressed their program of research will 
very likely die of old age long before the research is finished. What is 
perhaps of some weight in molding the currents of modern legal research 
is a belief that law can attain the prestige of science only by showing 
a thorough contempt for judgments of value. There is no room for ethics 
in the oldest and most advanced science, physics. Why should those who 
seek to build legal science concern themselves with ethics? Science feeds 
upon facts. And what have facts to do with moral values? 2 


To explain the sources of that contempt which those who practice or 
study the law feel for the study of ethics is not to show that this con- 
tempt is groundless. Indeed much that teachers of ethics have said in 
the last few hundred years would greatly strengthen the current belief 

2. I have tried to answer this question by showing that values are facts, in "The 
Subject Matter of Ethical Science/' 42 Internal. Journal of Ethics 397 (193?). And see 
Ethical Systems and Legal Ideals (1933), c 3. 


that ethics has no useful gifts to offer either to the practice or to the 
science of law. Blame for the modern divorce between law and ethics 
does not lie wholly with lawyers, judges, and students of law. 

The fact of the matter is that ethics, in the western world, has never 
quite gotten over a bad case of stage fright which it suffered at about the 
time of the downfall of the feudal system and the birth of modern 
commerce and science. Long after these events ethics has spoken only 
in whispers, as if afraid that its commands might be heard by those who, 
in any case, would not obey. It is no wonder that the halls have emptied. 

If ethics is chiefly concerned with the problems that teachers of ethics 
have discussed during the past three or four hundred years, that is to 
say, with the conduct of a man towards his next-door neighbor and 
towards his next-door neighbor's wife, with those aspects of human con- 
duct that endure unchanged through the decay of social systems, and, 
on the whole, with questions of manners rather than with basic ques- 
tions of social values, then ethics has little to offer to those who practice 
or study law. For the basic problems of the law today involve social 
forms and patterns that cannot be compressed into the narrow confines 
of what may be called "Sunday School ethics." Only an ethics that 
squarely faces the problems which modern commerce and modern science 
have brought into our world can offer any worthwhile gifts to modern 

The domain of ethics has not always been as narrow as that to which 
modern moral discourse has been chiefly confined. The social order in 
which we live today, in which certain rather petty questions are thought 
of as ''moral" and other questions of conduct, such as the question of 
how one ought to vote or spend his money or decide a case at law, arc 
thought of as "not moral," would no doubt seem very strange to those 
who have lived in a more stable and compact world. 

In the Books of Moses, for instance, all the basic problems of human 
conduct that a given social order raised are dealt with as parts of the same 
life, subject to the same sanctions, and marked by a constant set of 
human values. There is no hint that problems of hygiene are less "moral" 
than problems of sex> or that a man's conduct ceases to be moral when it 
affects vast numbers of his fellows. The moral system which the Books 
of Moses reflect is a system which seeks to guide men in the fields of law, 
art, commerce, hygiene, and all other realms in which men seek to 
achieve the valued ends of life. All conduct, of course, involves questions 
of technique, as to which such a moral code may have little or nothing to 
say, but all conduct also involves a choke of human ends* and to that 
extent falls within the field of a complete moral code. 



What is true of the moral code of the Hebrews is no less true of that 
which appears in the writings of Plato. To Plato the notion that art, for 
instance, might have a purpose of its own ("art for art's sake") foreign to 
any standard of the common good, and that the question of what an artist 
ought to do as an artist was any less a moral question than the question 
of what he ought to do as a father, or husband, or friend, seemed quite 
devoid of force. If certain types of painting or sculpture or music induce 
men to live worthless lives, they are, in Plato's view, bad, and the artist 
who pursues such forms of art must be punished or exiled from a good 
state. Trade practice, whether of artist or of lawyer, offers no haven of 
refuge from the winds of moral doctrine. 

This view of a moral code which pervades all aspects of life is basic in 
the Christian worldview of the Middle Ages. The Church teachers treat 
in great detail such problems as the problem of the fair price, not only 
with respect to payment for the use of money, but also with respect 
to all other forms of trade. Not only customs of trade, but also habits 
of thought, the pursuit of art, the use of wealth, and the duties of rulers 
to subjects and of subjects to rulers are clearly conceived as fields of 
human conduct which must be subject to a single set of social values if 
men are to avoid endless conflict and chaos in their common life. 

Each of these great moral codes faces clearly the basic problems of a 
given social scene. Each looks upon the whole field of human conduct 
as the proper realm of ethics. There is no hint in any of these worldviews 
of the modern "Sunday School ethics" which restricts its outlook to a 
small part of men's day-to-day life and leaves major problems of conduct 
to be dealt with in terms that are supposed to be non-moral. None of 
these worldviews would permit a lawyer or judge to deal with basic 
problems of human conduct while shutting his eyes to the doctrines of 
ethics which had been evolved in an attempt to throw light upon these 
problems. In each of these systems of thought, the jurist must be a stu- 
dent of ethics and may be a teacher of ethics. 

It is not my purpose to trace the many factors which have led ethics 
to its present low estate in the domain of thought. It is enough to men- 
tion but two of these factors: the rise of modern commerce and the 
growth of modern science. 

Modern commerce, that is to say trade and travel, helped to break 
down firmly entrenched moral beliefs. The cargoes of commerce have 
always contained seeds of moral revolt, Xenophanes, finding that the 
people of Thrace worshipped gods with blue eyes and yellow hair and 
that the people o Egypt worshipped dark-skinned gods with curly hair, 
inferred that if oxen had gods their gods would have horns. It is not 


likely that such a thought would have occurred to Xenophanes if he had 
lived and died in a village where men do not travel and do not come into 
close contact with diverse moral codes and faiths. 

Along with the growth of modern commerce went the rise of modern 
towns and cities. The city has always been a center of "strange ways," 
of "vice," of new manners, and of new ways of thinking. In the cities 
arose the challenge to the older mores of feudal state and Church. 

This challenge was confirmed by the rise of science. Science, while it 
brings new knowledge, at the same time reveals the limits o our 
knowledge and strengthens the spirit of doubt. Every new law of science 
not only reveals the mistakes we have made in the past, but also raises 
a host of new problems that we cannot yet answer and points to new 
fields for research. 

No branch of learning within the domain of science can pretend to be 
immune from doubt and from change. But ethics, long rooted in sacred 
texts, seemed to demand complete freedom from doubt and change. So 
long as this view of ethics endured, the teachers of ethics were forced 
to retreat from all those fields of human conduct in which science might 
have something new and useful to say. 

So it comes about that when science enters the field of hygiene, ethics 
retreats and ceases to deal with questions of health, sport, and disease. 
When science attempts to account for prices, wages, work, and wealth, 
these subjects are renounced by the teachers of ethics. As matters of state 
come within the province of science, these topics drop out of the books 
and lectures of moral teachers. 

The end of this process is the complete divorce between ethics and 
all studies of human conduct which invoke the aid or the name of science. 
The divorce between ethics and law is only one aspect of this wider fact. 

The blind alley which ethics thus reached appears most clearly in the 
teachings of Kant. For Kant, science deals with a world that contains 
matter, a world of cause and effect; ethics must therefore, if it is to 
remain pure and free from the doubts that science brings, deal with a 
wholly distinct world, a world without matter, without cause, and with- 
out effect 

The problem remains: Where does such a world exist? Kant*s answer 
is that this moral world, this world above science, may be found in the 
domain of the human will, which is supposed to be without cause and 
without effect. If one wills what is right, he is moral, and this Tightness 
depends not upon the effects of conduct on the lives of other people but 
rather upon an assumed logic This logic is supposed to show that an 
evil will defeats itself, and the final test between good and evil, between 


right and wrong, is supposed to be a matter of simple reason, having 
no basis in human desires, human sorrows, human joys, or any of the 
results of human action. 

This view of Kant, which raises logic to the role of a supreme moral 
guide, is a complete answer to the search for a place where ethics may be 
secure from the slings and arrows of science. But ethics pays a high price 
for such freedom from doubts. To leave all problems of cause and efect, 
of human desire and pleasure, of the forces that mold human lives and 
social systems, to one side, in the effort to rise above all the doubts to 
which science is heir, is to end at last in the Sunday School view of 
ethics. The province of ethics comes to be seen as a morbid searching 
of conscience for feelings of guilt. It is a long retreat to this narrow 
hermit's cave from the broad fields of human work and play, art and 
thought, the use of power and the use of wealth, over which ethics once 
wielded its scepter. 

Today many of us are a little ashamed to use the words "good," 
"bad," "right/' "wrong/' "evil," and "duty" (except in a narrow legal 
sense) in dealing with the basic problems of law and the social order. 
Lawyers and judges, if they think of ethics at all, outside the narrow 
canons of "legal ethics/ 1 are likely to conceive of ethics as dealing chiefly 
with the problem of sex. A "decent" book, a "moral" man, and a "good" 
woman attain their moral titles by meeting certain moral standards in 
the single field of sex. If judges and lawyers sometimes think of ethics as 
going somewhat beyond the field of sex, it is only to take in a few simple 
types of conduct, such as murder and deceit, upon which conscience is 
still supposed to ofier data that science cannot deny or alter. 

But while ethics has been in constant retreat from the growing domains 
of science, those who speak in the name of science have not refrained 
from passing all sorts of moral judgments upon men's actions. 

Thus even Dr. John B. Watson, who regards ethics as an outworn 
fetish, offers us, in the name of science, many moral rules as to how 
we ought to bring up our children. He thinks, for instance, as Plato 
did, that mothers and nursemaids ought not to fondle babies as much 
as they do. 

"Treat them as though they were young adults," he tells us. ". . . Never 
hug and kiss them, never let them sit on your lap. If you must, kiss 
them once on the forehead when they say good night/' 3 

Now it is clear that these sentences do not describe human conduct, but 
rather prescribe moral rules as to how we ought to behave* I am not 
concerned, for the moment, with the question of whether Dr. Watson's 

5, John B, Watson* Psychological Care of Infant and Child (1928), p. 81. 


ethics reveals a great insight into the values of life. I am concerned only 
to show that those who deny ethics, in the name of science, do not always 
avoid making moral judgments. In fact one may be unkind enough to 
suspect that those who attack ethics, in the course of making moral 
judgments, are chiefly concerned to deprive those who do not agree with 
these moral judgments of the right to reply to them. 

It is clear that those who pretend to derive moral judgments from the 
facts of science have somehow slipped a doctrine of ethics into their 
science. If they are not clearly aware of the doctrine, so much the worse 
is the doctrine likely to be. But false ethics is still ethics, and those who, 
in the name of some science of human conduct, offer advice on how we 
ought to bring up our children, or how we ought to treat law breakers, 
or how we ought to control or fail to control the exchange of goods and 
labor, are in fact dealing in ethics, whether they know it or not. 

Ethics, having all but vanished from its own precincts, has bobbed up 
under assumed names in all the realms of social science. The law faces 
ethics in a hundred guises when it deals with any of the current prob- 
lems of the social order. 


It is the task of modern ethics to bring all value judgments into an 
ordered system. This task has been frankly faced by such recent writers 
as G. E. Moore, Ralph B. Perry, and DeWitt Parker, 4 

Modern ethics (if I may assign that phrase to this new current in our 
moral thinking) flatly rejects the notion of Kant that moral judgments 
can be applied only to human will and that the human will must be 
judged to be good or bad apart from the effects of a man's conduct upon 
the lives of others. At the same time, modern ethics rejects the notion 
that tests of right and wrong can be conceived in terms of pure logic or 
reason. Questions of right and wrong are seen to involve questions of fact 
which must be answered by some science. What will the effects of this or 
that type of conduct be? That is not itself a question of ethics, but it is a 
question that must be answered In advance of any moral judgment upon 
human conduct. 

In essence, there is nothing new in the modern viewpoint with respect 
to the scope and the data of ethics. To view all of life's values and to at- 
tempt to relate these values to each other in a single system is to return 
to the basic moral outlook of the Books of Moses, the teachings of Plato, 

4, Sec C, E, Moore, SMcs (*$ii); R**pfc Barton Perry, The MerQl roraomy 
DeWitt Parker, Human Kalutf 


and the Church creed of the Middle Ages. The attempt to bring into the 
service of ethics all human knowledge that throws any light upon the 
causes and effects of human actions and passions is also far from new. But 
there is at least one respect in which modern ethics differs from the ethics 
of all other epochs. That is the view which modern ethics takes of the 
source of moral knowledge. 

Modern ethics seeks to attain moral knowledge through the methods of 
science. Moral thought which has not made its contact with science seems 
always to proceed as a search for a master key, a final dogma from which 
the answers to all moral problems may be inferred. But science rejects all 
dogmas. And modern ethics, which seeks to attain the status of a science, 
likewise rejects all dogmas. 

Doctrines of ethics thus come to be viewed, like the doctrines of science, 
as the end result, rather than the starting point, of wisdom. The data of 
ethics are the concrete moral facts of the day-to-day world, the good things 
and bad things that we see done, enjoyed, or suffered, and approve or 
condemn. Perceived values are brought into a system, in modern ethics, 
in the same way that perceived facts of color, weight, size, etc., are brought 
into a system in the science of physics. The moral laws thus arrived at are 
not beyond doubt. They are all, very likely, untrue in part, and they may 
be refined and brought closer to the truth as the science of ethics grows in 
stature. The method of science provides a constant means of growth. 

Ethics can return to its once basic role in human life only by giving up 
its horror of the language of science, its fear of the skeptic's doubts, its 
contempt for piece-meal truth and for growth by trial and error methods. 
Modern ethics boldly asserts its right, and frankly faces its duty, to deal 
with value judgments in all fields of human conduct, but it does this in the 
humble spirit of science. 

What value, if any, has this modern view of the scope and method of 
ethics for the living law? 


A good deal of the writing of judges, lawyers, and students of law in- 
vokes the name and prestige of logic, or reason. Judges often claim to 
derive judgments from the holdings of past cases by a process of logic. 
Their critics often attempt to appraise these judgments in terms of logic 
rather than in terms of social values, 

Recent studies, both in logic and in ethics, have made it clear that any 
claim that "logic supports" any legal rule (or any other judgment about 
human conduct) must be false. Rules of logic can no more produce legal 



or moral doctrines than they can produce kittens. On the whole, it is safe 
to assume that those legal doctrines that claim to be the offspring of logic 
are either not proud or not aware of their real parents. 

The study of logic may show that certain supposed proofs of the need 
for certain rules or judgments are not valid, but the fact that certain proofs 
advanced to support a given cause are not valid does not show that the 
cause is bad. Logic offers its powers on equal terms to good men and bad 
men, to good rules of law and bad rules of law. 

When it is said that logic dictates a certain rule or judgment, it is 
clear that some premise of ethics, which may in fact support the rule or 
judgment in question, has been falsely viewed as a rule of logic. Now this 
is more than a harmless error in the use of terms. To say that a given 
judgment is required by logic is to affirm that no other judgment could 
have been given by any man possessed of reason. To affirm this is to 
proscribe all doubts as to the moral soundness of the judgment. On the 
other hand, to say that the judgment follows from a given moral premise 
is to raise such doubts to the status of a real challenge, for what the court 
accepts as a moral premise may very well seem untrue to lawyers and 

Modern ethics claims as part of its own domain every judgment of 
"good/* "bad," "right," "wrong," "ought" and "ought not." Problems an- 
swered in these terms are problems of ethics, not problems of logic. 

I suppose that those who defend concrete rules and judgments in the 
name of logic often mean to say that past cases give rise, as a matter of 
logic, to certain rules of law which govern future cases. But are legal rules, 
in fact, derived from past cases on a basis of logic alone? The task of the 
law student would be much simpler if this were the case. In order to derive 
a rule from a given case, or even from a whole series of cases, one must 
decide that certain facts which appear in these cases are crucial, and that 
hundreds of other facts involved in these cases had no effect upon the 
final judgments and may be ignored in drawing a rule from these judg- 
ments. What is needed for this task is not only clear thinking but a sound 
sense o values. What moral a court ought to draw from past cases is 
always a moral question. It is the function of ethics to bring to bear upon 
such questions a sound seme of human values. Logic cannot take the 
place of ethics in this service, 


The prestige of science, like that of logic, has been loosely invoked in 
support of legal rules and judgments. What is the proper role of science 
in the service of the law? 


Modern ethics begins by noting that many of the problems which 
have been answered in the name of science are in fact moral problems. 
A science which seeks to describe human conduct, or any aspect of such 
conduct, cannot give us rules as to how we ought to behave. Such rules, 
fixing standards for human conduct, are moral rules, even if those who 
utter them speak in the language of science. 

Science, then, in so far as it does not assume moral standards, cannot 
provide us with legal rules. The function of science is rather to throw 
light upon the real meaning of legal rules by tracing their effects 
throughout the social order. To appraise or value these effects is the 
task of ethics. 

To take a concrete example, the legal question of when a man should 
be deemed insane is not a question that science can answer. Science 
may explain the facts in a given case and throw light upon their causes. 
But to decide that a man should not be punished for an offense because 
of his mental state requires a moral judgment as to the ends of penal law. 

Is the function of such law the reform of the accused? Or is it to offer 
warning to others? Is it simply revenge? Or is it, as Tarde thought, the 
more subtle function of serving as a moral drama to impress a certain 
code of conduct not simply upon the mind of the accused, but even more 
upon the minds of judge, jury, and lawmaker, and the public whose 
agents these chief actors are? Which of these moral ends we accept as 
sound will clearly have some effect upon the question of whether a given 
class of persons is to be deemed sane or insane, in the eyes of the law. 
The wisdom of the doctor will not suffice to dispose of this problem. 

Modern ethics deals with the data of human conduct not as a rival to 
science, but rather as an ally of science. The problems of the law have 
always a background of social facts, which it is the task of social science 
(or common sense, which is, in the main, science mellowed a hundred 
or a thousand years) to explain. But the problems of the law have also 
an aspect of value, which involves a moral judgment imposed upon the 
social facts. Neither science alone nor an ethics that ignores the data of 
science can offer a valid test of the goodness or badness of law. 


Despite the attempt to derive all sorts of legal rules from the dictates of 
logic or the laws of science, the law has never been wholly freed from 
an avowed moral basis. What light can modern ethics throw upon the 
moral doctrines which the law invokes and seeks to enforce? 

It is still the fashion, in the law, to refer to conscience as the final 
source of moral knowledge. Conscience is supposed to tell us that a man 



ought to do what he has promised to do. Upon the simple basis of this 
supposed dictate of conscience, many legal scholars have sought to defend 
or attack special rules of contract law. In no study of the law of contracts 
that I know has any attempt been made to show the extent to which 
people rely upon the words of others, in given realms of human affairs, 
or to appraise the social costs of broken faith. From the moral dogmas of 
the law, founded upon the firm rock of conscience, there is no appeal 
to facts. 

From the standpoint of modern ethics, conscience cannot be viewed 
as a final source of moral wisdom. Lawyers do not need to be told that 
conscience varies among men no less than the size of the human foot. 
Conscience is largely a product of the moral teachings of parents, nurse- 
maids, teachers, friends, and judges. 

To say this is not to deny that men have some sense of values, and 
that what we call conscience contains the germs of moral truth. Modern 
ethics does not seek to throw conscience overboard, but rather attempts 
to refine the supposed dictates of conscience, just as physics refines men's 
judgments about the movement, weight, and color of bodies. 

Physics could not exist if men were not able to perceive the passage 
of time, the size, color, and motion of bodies, etc. So, too, ethics could 
not exist if men had no sense of values. But physics cannot accept as 
beyond doubt any belief about color or motion, no matter how widely 
held. It is the task of physics to make us aware that what we sec is not 
always the same as what we think we see. So, too, ethics cannot accept 
as beyond doubt any belief about life's values, no matter how widely 
held. It is the task of ethics to make us aware that what we value, 
in life is not always the same as what we think we value. One may 
perceive goodness in given events without knowing what it is that makes 
the events good, without knowing whether the effects of these events will 
also be good, without knowing whether other events, alike in certain 
respects to the events perceived, will also be good. To attain such 
knowledge is the central task of ethics. 

Modern ethics regards conscience as the starting point rather than the 
end or substance of moral wisdom. The dictates of conscience involve 
the subject matter of ethics. This subject matter can be attacked with 
the methods of science. The nature of objects that we approve or con- 
demn can be defined by science, and we may thus come a little closer 
to knowing what it b that we value. The effects of human conduct can 
be forecast, to some extent, by science, and we may thus be able to 
project a moral judgment into the future, to link a judgment about the 
future with a judgment about the present, and thus to balance values 
that conflict and bring some system into our moral beliefs, 



Applied to law, this point of view may serve as a challenge to en- 
trenched moral dogmas that enslave the law. The moral basis of law 
is not a set of moral dogmas but a method of testing all legal doctrines 
in terms of their effects upon human life. 


Modern ethics is, above all, matter-of-fact. Dealing with the common 
problems of human life, it must renounce the pretense of mystic learn- 
ing. Facing the profound conflicts of thought and purpose within our 
social order, it cannot pretend to remove all doubts and conflicts with 
magic words. Using the methods and the data of science, it must attempt 
to build up moral rules in a piece-meal way, by testing every moral rule 
against moral judgments upon concrete cases, 5 and by fitting every moral 
judgment into its proper context of social facts. 

This matter-of-fact spirit of modern ethics, far removed from the 
spirit of those moral codes that find a final answer to all questions in 
sacred texts or in the faultless dictates of reason or conscience, may bring 
a new approach to one of the oldest problems of the law. 

The problem of the proper scope of law has often been dealt with as 
if it were a problem in pure logic. First the word "law" is defined. 
Then it is inferred that the "nature" of law excludes from the field of 
legal control certain types of human conduct (for instance, under cer- 
tain doctrines, all human thought or intent which is not acted upon, 
and, under other doctrines, the way a man spends his money). In all 
this there is no contact with facts of any sort. The proper scope of law 
is supposed to be shown by pure reason or logic, rather than by any 
study of the effects of law upon human lives and the value of these effects. 

All this would be harmless enough nonsense if those who advance 
doctrines of "the proper scope of law" in the name of reason or logic 
did not attempt to make their doctrines come true by damning all at- 
tempts to bring new aspects of human life within the realm of legal 
control. The trouble is that men use the current statements, "It is not 
the purpose of law to make men good," "It is not the function of law to 
engage in charity," "It is not within the proper province of law to save 
a man from his own mistakes," not simply to describe the law as it is, 
but rather to oppose threatened reforms in the law. 

Modern ethics rejects as an empty play upon words any attempt to 
derive a doctrine of the scope and function of law from a study of the 
meaning of the term "law." 

If the law can do any good at all, in any field of life, to do such 

5. See F. S. Cohen, "Casuistry*' [above, p. 14). 



good is part of the moral task of law. The question is simply, "Can 
the law do any good?" And this is a question that must be answered 
in terms of some system of moral values and in the light of certain 
brute facts that cannot be derived from logic or ethics. To what extent 
can certain rules of law be enforced? How many machine guns are behind 
the bench? How much will it cost to enforce this or that law, and how 
much money does the state command? In terms of such facts, one may 
venture a doubtful answer to the question of whether or not an attempt 
to secure some new social value through law will be likely to succeed. 
Apart from this simple, matter-of-fact question, the whole problem of 
the proper scope of law is an unreal question to which all answers are 
nonsense. 6 


From the viewpoint of modern ethics, law is a social tool. That is to 
say, law must be valued in terms of what it does in our social order, in 
terms of its effects upon human lives. If a given legal rule helps men 
to lead good lives, it is good; if it helps men to lead bad lives, it is bad. 

To most laymen, as to many lawyers, this may seem a truism. But 
in fact the habit of viewing legal rules simply as means to certain social 
ends has never made very much headway in modern legal thought. For 
the lawyer is a craftsman, and, like other craftsmen, he is apt to feel 
that his art has its own standards of beauty. These standards seem at 
times to take the place of an ethics. 

The craftsman who takes pride in his work is likely to look upon the 
products of his labor as objects of art, which are to be appraised not 
by the judgment of laymen but by the judgment of those trained in the 
art. The modern painter may betray a proud contempt for those whose 
lack of training prevents them from seeing the highest type of beauty 
in abstract planes and color schemes. So the cook may resent the notions 
of diet which turn the public from his noblest products, And the lawyer 
is prone to regard as foolish or depraved the layman's view that the 
goodness or badness of law Is simply a function of its social effects upon 
human masses. "Let justice be done though the earth perish/* rings on 
a much nobler key. 

Justice* thus conceived as something apart from the concrete values of 
human life, becomes a special type of beauty. Lawyers' law that is made 
by judges for lawyers and law students makes its prime appeal to a 
trained sense of order and balance. Perhaps the legal rule which shows 

6. Cf. F. S. Cohen, "What is a Qucidon? 11 (above, p. 3], 



this beauty to the highest degree is the old law of "an eye for an eye 
and a tooth for a tooth." That the plotter should fall into his own trap, 
that murder should be punished by death, that a liar should be 
"estopped" from telling the truth in his own defense, these things appeal 
deeply to a lawyer's sense of beauty. So, too, do the refined legal doctrines 
which seem to bring order out of a chaos of confused holdings. Even 
the language of hardheaded lawyers often shows more respect for the 
canons of balance and the signs of a word juggler's skill than for the 
needs or wishes of a simple client. 

Of course, in legal practice, the aesthete is to some extent swallowed 
up in the tradesman. Clients do not have very much patience with the 
subtle beauties of legal doctrine. It is only in the free thought of law 
teachers and law students that the human needs of a client wholly 
vanish from a legal problem and leave the problem wholly to the 
mercy of a sense of legal beauty (legal "logic" this is sometimes called, 
although it has nothing to do with real logic). 

The judgments passed upon legal rules and cases in our law reviews 
bear most clearly the imprint of the aesthete. The rule or holding is 
judged, not always but most often, not in terms of the question, "What 
are its effects likely to be, in practice, and are these effects good or bad?" 
but rather in terms of the quite distinct question, "Does this rule or 
holding fit smoothly into some lovely pattern which some law teacher 
has found in the past cases, does it perhaps give a pleasing new turn 
to this pattern, or does it spoil the pattern?" 

The false slant which this craftsman's approach gives to much legal 
thinking can be removed only by a more conscious sense of the diverse 
human values which impinge upon any legal case. A sense of legal 
beauty or finesse becomes a social disease only when it obscures the 
human needs of those who are not lawyers. The old rules of common 
law pleading, for instance, gave lawyers much joy and were, to that 
extent, good, but at the same time they caused all manner of havoc in 
the affairs of clients. In this conflict of values, surely the view of the 
public, which at last made its way into the words of certain statutes, 
was more humane, based upon a wider set of human values, than the 
opposed view of most judges and lawyers. 

Norms of justice have often been used as a screen to hide from 
the eyes of the law the real wants of the masses from whom a court 
derives its powers. But in the end, all attempts to define justice except in 
terms of the effects of law upon human desires and feelings have ended 
in failure, and must end in failure. Modern ethics has made it clear that 
no realm o values can be set apart from the fullness of life. Justice, like 


beauty, or health, can be defined only in terms of the full set of human 
values, the things that men approve or enjoy for their own sake. The 
standards of justice or beauty or health must alter as social changes 
make place for new human values or shift the role of older values. In- 
grown law, like ingrown art, like any form of thought or action that shuts 
itself from the outside world, becomes at last idle play with forms with- 
out meaning. 

Modern ethics rejects all formal standards of justice as the end of law, 
and subjects all supposed canons of justice to the final standard of the 
good life. The good life, conceived as a system of concrete human values 
(not all of them achieved, to be sure, in any single human life), has a 
clear meaning for the practice and the study of the law: It brings to bear 
upon the problems of the law the full wealth of human wisdom in 
the realms of the law's effects upon men's desires, joys, and sorrows. 
Where such wisdom exists, the gain for the law is clear. Where such 
wisdom does not exist, the gain is less clear but may be as weighty. 
To know the limits of past knowledge is the needed prelude to useful 
research. No doubt the breadth of viewpoint which the concept of the 
good life as a standard of law entails will filter only slowly into our 
day-to-day judgments upon legal case and doctrine; but in the end it must 
deeply transform both the study and the practice of the law. 

Transcendental Nonsense and the 
Functional Approach 


Some fifty years ago a great German jurist had a curious dream. He 
dreamed that he died and was taken to a special heaven reserved for 
the theoreticians of the law. In this heaven one met, face to face, the 
many concepts of jurisprudence in their absolute purity, freed from 
all entangling alliances with human life. Here were the disembodied 
spirits of good faith and bad faith, property, possession, laches, and 
rights in rem. Here were all the logical instruments needed to manipulate 
and transform these legal concepts and thus to create and to solve the 
most beautiful of legal problems. Here one found a dialectic-hydraulic- 
interpretation press, which could press an indefinite number of meanings 
out of any text or statute, an apparatus for constructing fictions, and a 
hair-splitting machine that could divide a single hair into 999,999 equal 
parts and, when operated by the most expert jurists, could split each 
of these parts again into 999,999 equal parts. The boundless opportuni- 
ties of this heaven of legal concepts were open to all properly qualified 
jurists, provided only they drank the Lethean draught which induced 
forgetfulness of terrestrial human affairs. But for the most accomplished 
jurists the Lethean draught was entirely superfluous. They had nothing 
to forget. 1 

Von Jhering's dream has been retold, in recent years, in the chapels 
of sociological, functional, institutional, scientific, experimental, realistic, 
and neo-realistic jurisprudence. The question is raised, "How much of 
contemporary legal thought moves in the pure ether of Von Jhering's 

i. Von Jhering, 'Im Juristischen Begriffshiramel," in Scherz und Ernst in der Juris- 
prudent (nth ed., 1912), p. 245. 

Published in Columbia Law Review, 1935. For a fuller discussion of the functional 
method in legal criticism, see below, "The Problems of a Functional Jurisprudence/' p. 




heaven of legal concepts?*' One turns to our leading legal textbooks and 
to the opinions of our courts for answer. May the Shade of Von Jhering 
be our guide. 

/. Where Is a Corporation? 

Let us begin our survey by observing an exceptionally able court as it 
deals with a typical problem in legal procedure. In the case of Tauza v. 
Susquehanna Coal Company, 2 a corporation which had been chartered 
by the State of Pennsylvania was sued in New York. Summons and com- 
plaint were served upon an officer of the corporation in New York in 
the manner prescribed by New York law. The corporation raised the 
objection that it could not be sued in New York. The New York Court 
of Appeals disagreed with this contention and held that the corporation 
could be sued in that State. What is of interest for our purposes is not 
the particular decision of the court but the mode of reasoning by which 
this decision was reached. 

The problem which the Court of Appeals faced was a thoroughly 
practical one. If a competent legislature had considered the problem 
of when a corporation incorporated in another State should be subject 
to suit, it would probably have made some factual inquiry into the 
practice of modern corporations in choosing their sovereigns 8 and into 
the actual significance of the relationship between a corporation and 
the state of its incorporation. It might have considered the difficulties 
that injured plaintiffs may encounter if they have to bring suit against 
corporate defendants in the state of incorporation. It might have 
balanced, against such difficulties, the possible hardship to corporations 
of having to defend actions in many states, considering the legal facili- 
ties available to corporate defendants. On the basis of facts revealed 
by such an inquiry, and on the basis of certain political or ethical value 
judgments as to the propriety of putting financial burdens upon cor- 
porations, a competent legislature would have attempted to formulate 
some rule as to when a foreign corporation should be subject to suit. 

The Court of Appeals reached its decision without avowedly consider- 
ing any o! these matters. It does not appear that scientific evidence 
on any of these issues was offered to the court. Instead of addressing 
itself to such economic, sociological, political, or ethical questions as a 

t. aao N.Y, 859, 115 N,E. 915 (*9 I 7) 

$, Sec Btrle, ''Investors and tfae Revised Delaware Corporation Act" 
Columbia Law **. $631 Rlpley, Main $W* and Wdl Strut (1917), 



competent legislature might have faced, the court addressed itself to 
the question, "Where is a corporation?" Was this corporation really in 
Pennsylvania or in New York, or could it be in two places at once? 

Clearly the question of where a corporation is, when it incorporates in 
one state and has agents transacting corporate business in another state, 
is not a question that can be answered by empirical observation. Nor is 
it a question that demands for its solution any analysis of political con- 
siderations or social ideals. It is, in fact, a question identical in meta- 
physical status with the question which scholastic theologians are sup- 
posed to have argued at great length, "How many angels can stand 
on the point of a needle? 1 ' Now it is extremely doubtful whether any 
of the scholastics ever actually discussed this question.* Yet the question 
has become, for us, a symbol of an age in which thought without roots 
in reality was an object of high esteem. 

Will future historians deal more charitably with such legal questions as 
"Where is a corporation?" Nobody has ever seen a corporation. What 
right have we to believe in corporations if we don't believe in angels? 
To be sure, some of us have seen corporate funds, corporate transactions, 
etc. (just as some of us have seen angelic deeds, angelic countenances, 
etc.). But this does not give us the right to hypostatize, to "thingify," 
the corporation, and to assume that it travels about from State to State 
as mortal men travel Surely we are qualifying as inmates of Von 
Jhering's heaven of legal concepts when we approach a legal problem in 
these essentially supernatural terms. 

Yet it is exactly in these terms of transcendental nonsense that the 
Court of Appeals approached the question of whether the Susquehanna 
Coal Company could be sued in New York State, "The essential thing/' 
said Judge Cardozo, writing for a unanimous court, "is that the corpora- 
tion shall have come into the State/' 5 Why this journey is essential, or 
how it is possible, we are not informed. The opinion notes that the 
corporation has an office in the State, with eight salesmen and eleven 
desks, and concludes that the corporation is really "in" New York State. 
From this inference it easily follows that since a person who is in New 
York can be sued here, and since a corporation is a person, the Susque- 
hanna Coal Company is subject to suit in a New York court. 

The same manner of reasoning can be used by the same court to show 
that the Dodge Bros. Motor Corporation "cannot" be sued in New York 

4, Several students of scholastic philosophy inform me that they have never found 
any evidence of such discussion more reliable than the hearsay testimony o Rabelais. 
, See sao N*Y. at *68, 115 NJE, at 918. 



because the corporation (as distinguished from its corps of New York 
employees and dealers) is not "in" New York. 6 

Strange as this manner of argument will seem to laymen, lawyers 
trained by long practice in believing what is impossible, 7 will accept this 
reasoning as relevant, material, and competent. Indeed, even the great 
protagonist of sociological jurisprudence, Mr. Justice Brandeis, has in- 
voked this supernatural approach to the problem of actions against 
foreign corporations, without betraying any doubt as to the factual 
reference of the question, "Where is a corporation?" Thus, in the leading 
case of Bank of America v. Whitney Central National Bank, 8 the United 
States Supreme Court faced the question of whether a banking corpora- 
tion incorporated in Louisiana could be sued in New York, where it 
carried on numerous financial transactions and where its president had 
been served, but where it did not own any desks. The Supreme Court 
held that although the defendant "had what would popularly be called 
a large New York business," the action could not be maintained, and 
offered, per Brandeis, J., the following justification of this curious 
conclusion: 9 

The jurisdiction taken of foreign corporations, in the absence of 
statutory requirement or express consent, does not rest upon a 
fiction of constructive pmence, like qui facit per alium fadt per se. 
It flows from the fact that the corporation itself docs business in the 
State or district in such a manner and to such an extent that its 
actual presence there is established. That the defendant was not in 
New York, and, hence, was not found within the district, is clear. 

Of course, it would be captious to criticize courts for delivering their 
opinions in the language of transcendental nonsense. Logicians some- 
times talk as if the only function of language were to convey ideas. 
But anthropologists know better and assure us that "language is pri- 

es. Holier v, Dodg* Bras. Moiar Corp., 5*35 N.Y. st6 135 N,E. a68 
7. "I can't believe th&tr said Alice, 
"Can't you?" the Queen said, in a pitying tone. "Try again: draw a long breath, and 
shut your eye*." 
Alice laughed. "There's no use trying, 1 ' the *a!d; "one can't believe imjoible 


"I dare say you haven't had much practice,'* said the Queen. "When i was your 
age I always did it for hall an hour a day. Why, sometimes I've believed as many at 
six impossible thing* before breakfast." (Lewii Carroll, Through the Looking Glow, 

8, 6i U.S. 17 
, !d. f at 173, 



marily a pre-rational function." 10 Certain words and phrases are useful 
for the purpose of releasing pent-up emotions, or putting babies to sleep, 
or inducing certain emotions and attitudes in a political or a judicial 
audience. The law is not a science but a practical activity, and myths may 
impress the imagination and memory where more exact discourse would 
leave minds cold. 

Valuable as is the language of transcendental nonsense for many prac- 
tical legal purposes, it is entirely useless when we come to study, de- 
scribe, predict, and criticize legal phenomena. And although judges and 
lawyers need not be legal scientists, it is of some practical importance 
that they should recognize that the traditional language of argument 
and opinion neither explains nor justifies court decisions. When the vivid 
fictions and metaphors of traditional jurisprudence are thought of as 
reasons for decisions, rather than poetical or mnemonic devices for 
formulating decisions reached on other grounds, then the author, as 
well as the reader, of the opinion or argument, is apt to forget the social 
forces which mold the law and the social ideals by which the law is to 
be judged. Thus it is that the most intelligent judges in America can 
deal with a concrete practical problem of procedural law and corporate 
responsibility without any appreciation of the economic, social, and 
ethical issues which it involves. 

2. When Is a Corporation? 

The field of corporation law offers many illuminating examples of the 
traditional supernatural approach to practical legal problems. In the 
famous Coronado case, 11 the question was presented to the United 
States Supreme Court, whether employers whose business had been in- 
jured in the course of a strike could recover a judgment against a 
labor union which had "encouraged" the strike, or whether suit could 
be brought only against particular individuals charged with committing 
or inducing the injury. So far as appears from the printed record, counsel 
for the union defendants did not attempt to show that labor unions 
would be seriously handicapped by the imposition of financial responsi- 
bility for damage done in strikes, that it would be impossible for labor 

10. Sapir, Language (1921), p. *4- 

u. United Mine Workers of America v, Coronado Coal Co., 259 u - s - 344 (1922)- 
The British prototype of this case, Taff-Vale Ry. Co. v. Amalg, Soc. of Railway Servants, 
[1901] A.C. 426, reached a similar decision, professedly upon similar transcendental 
grounds, but this was soon upset by special legislation. See Webb, History of Trade 
Unionism (Rev. ed,, igao), p. 600 ff. 



unions to control agents provocateurs, and that labor unions served a 
very important function in modern industrial society which would be 
seriously endangered by the type of liability in question. Instead of 
offering any such argument to support the claim of the labor union to 
legal immunity for the torts of its members, counsel for the union 
advanced the metaphysical argument that a labor union, being an 
unincorporated association, is not a person and, therefore, cannot be 
subject to tort liability. This is a very ancient and respectable argument 
in procedural law. Pope Innocent IV used it in the middle of the 
thirteenth century to prove that the treasuries of religious bodies could 
not be subject to tort liability. 12 Unfortunately, the argument that a 
labor union is not a person is one of those arguments that remain true 
only so long as they are believed. 13 When the court rejected the argu- 
ment and held the union liable, the union became a person to the 
extent of being suable as a legal entity and the argument ceased to be 

The Supreme Court argued, "A labor union can be sued because it 
is, in essential aspects, a person, a quasi-corporation/' The realist will 
say, "A labor union is a person or quasi-corporation because it can be 
sued; to call something a person in law is merely to state, in metaphorical 
language, that it can be sued." 

There is a significant difference between these two ways of describing 
the situation. If we say that a court acts in a certain way "because a 
labor union is a person/' we appear to justify the court's action, and to 
justify that action, moreover, in transcendental terms, by asserting some- 
thing that sounds like a proposition but which cannot be confirmed or 
refuted by positive evidence or by ethical argument. If, on the other 
hand, we say that a labor union is a person "because the courts allow it 
to be sued/' we rccogni/c that the action of the courts has not been 
justified at all, and that the question of whether the action of the courts 
is justifiable calls for an answer in non-legal terms. To justify or criticize 
legal rules in purely legal terms is always to argue in a vicious circle. 1 * 

*a Cf. I>ewey "Corporate Personality" in Philosophy and Giviti*&tion (1931)* p. i$4i 
and ee Gierke, &&s Deut&ch* Gen&ssen&chaftwht* j, 879-85; cf. Holdsworth, History 
of English Law ($d cd. 1923} $, 470-74, 

13. Compare the case of Wild Modesty, a flower found on certain islands of the South 
Scfti, which is really white but turns red when any one looks it it (reported in Trap 
rock 'a The Cruise of the K&W& [*9n) p *o) 

14, Cf, Koguln, La Regie du Droll (1889): "Nothing Is more fallacious than to believe 
that one may give an account of the law by means of the law itidf." 


3. What's in a Trade Name? 

The divorce of legal reasoning from questions of social fact and ethical 
value is not a product of crusty legal fictions inherited from darker ages. 
Even in the most modern realms of legal development one finds the 
thought of courts and of legal scholars trapezing around in cycles and 
epicycles without coming to rest on the floor of verifiable fact. Modern 
developments in the law of unfair competition offer many examples 
of such circular reasoning. 

There was once a theory that the law of trade marks and trade- 
names was an attempt to protect the consumer against the "passing off" 
of inferior goods under misleading labels. 15 Increasingly the courts have 
departed from any such theory and have come to view this branch 
of law as a protection of property rights in divers economically valuable 
sales devices. 16 In practice, injunctive relief is being extended today to 
realms where no actual clanger of confusion to the consumer is present, 
and this extension has been vigorously supported and encouraged by 
leading writers in the field. 17 Conceivably this extension might be 
justified by a demonstration that privately controlled sales devices serve 
as a psychological base for the power of business monopolies, and that 
such monopolies are socially valuable in modern civilization. But no 
such line of argument has ever been put forward by courts or scholars 
advocating increased legal protection of trade names and similar devices. 
For if they advanced any such argument, it might seem that they were 
taking sides upon controversial issues of politics and economics. Courts 
and scholars, therefore, have taken refuge in a vicious circle to which 
no obviously extra-legal facts can gain admittance. The current legal 
argument runs: One who by the ingenuity of his advertising or the 
quality of his product has induced consumer responsiveness to a par- 
ticular name, symbol, form of packaging, etc., has thereby created a thing 
of value; a thing of value is property; the creator of property is entitled 
to protection against third parties who seek to deprive him of his prop- 
erty, 18 This argument may be embellished, in particular cases, with 

15. Sec Niras, Unfair Competition and Trade-Marks ($d ed., 1929) 8, and cases cited. 

16. See American Washboard Co, v. Saginaw Mfg. Co., 103 Fed. 281, 285 (C.C.A. 

6th, 1900). 

17. Nims, op. cit. supra note 15, ga; Handler and Pickett, "Trade-Marks and 
Trade Name* An Analysis and Synthesis" (1930) go Columbia Law Rev, 168, 759; 
Schechter, "The Rational Basis of Trade-Mark Protection" (1927) 40 Harv. L, Rev. 813. 

18. Cf. American Agricultural Chemical Co, v, Moore, 17 F,(ad) 196 (M.D. Ala. 1927) 
in which an interesting implication of the current theory is carried to its logical con- 



animadversions upon the selfish motives of the infringing defendant, 
a summary of the plaintiff's evidence (naturally uncontradicted) as to 
the amount of money he has spent in advertising, and insinuations 
(seldom factually supported) as to the inferiority of the infringing 
defendant's product. 

The vicious circle inherent in this reasoning is plain. It purports to 
base legal protection upon economic value, when, as a matter of actual 
fact, the economic value of a sales device depends upon the extent to 
which it will be legally protected. If commercial exploitation of the word 
"Palmolive" is not restricted to a single firm, the word will be of no 
more economic value to any particular firm than a convenient size, shape, 
mode of packing, or manner of advertising common in the trade. Not 
being of economic value to any particular firm, the word would be 
regarded by courts as "not property/' and no injunction would be issued. 
In other words, the fact that courts did not protect the word would 
make the word valueless, and the fact that it was valueless would then 
be regarded as a reason for not protecting it. Ridiculous as this vicious 
circle seems, it is logically as conclusive or inconclusive as the opposite 
vicious circle, which accepts the fact that courts do protect private 
exploitation of a given word as a reason why private exploitation of 
that word should be protected. 

The circularity of legal reasoning in the whole field of unfair com- 
petition is veiled by the "thingification" of property. Legal language 
portrays courts as examining commercial words and finding, somewhere 
inhering in them, property rights, It is by virtue of the property right 
which the plaintiff has acquired in the word that he is entitled to 
an injunction or an award of damages. According to the recognised 
authorities on the law of unfair competition, courts arc not creating 
property, but arc merely recognizing u pre-existem Something. 

The theory that Judicial decisions in the field of unfair competition 
law are merely recognitions of a supernatural Something that is im- 
manent in certain trade names and symbols is, o course, one of the 
numerous progeny of the theory that judges have nothing to do with 
making the law, but merely recognize pre-existent truths not made by 
mortal men.** The effect of this theory, in the law of unfair competition 

elusion, A fertilize* company is granted an Injunction against state officials asking to 
prevent the e of a misleading trade name. The argument is: The plaintiff expected 
to do a large business under this trade Rime; sutch expectation! are property* and mutt 
be protected agnlnst governmental Interference* 

19. See M. R Cohen, "The Frocen of Judicial Legislation," in Law $nd ihz Social 
Order (195$)* p. ut lo printed in (19*4) 48 Am, L. Jtw. 161. 


as elsewhere, is to dull lay understanding and criticism of what courts 
do in fact. 

What courts are actually doing, of course, in unfair competition cases, 
is to create and distribute a new source of economic wealth or power. 
Language is socially useful apart from law, as air is socially useful, but 
neither language nor air is a source of economic wealth unless some 
people are prevented from using these resources in ways that are per- 
mitted to other people. That is to say, property is a function of in- 
equality. 20 If courts, for instance, should prevent a man from breathing 
any air which had been breathed by another (within, say, a reasonable 
statute of limitations), those individuals who breathed most vigorously 
and were quickest and wisest in selecting desirable locations in which to 
breathe (or made the most advantageous contracts with such individuals) 
would, by virtue of their property right in certain volumes of air, come 
to exercise and enjoy a peculiar economic advantage, which might, 
through various modes of economic exchange, be turned into other 
forms of economic advantage, e.g. the ownership of newspapers or 
fine clothing. So, if courts prevent a man from exploiting certain forms 
of language which another has already begun to exploit, the second 
user will be at the economic disadvantage of having to pay the first user 
for the privilege of using similar language or else of having to use less 
appealing language (generally) in presenting his commodities to the 

Courts, then, in establishing inequality in the commercial exploitation 
of language are creating economic wealth and property, creating prop- 
erty not, of course, ex nihilo, but out of the materials of social fact, 
commercial custom, and popular moral faiths or prejudices. It does not 
follow, except by the fallacy of composition, 21 that in creating new 
private property courts are benefiting society. Whether they are bene- 
fiting society depends upon a series of questions which courts and 
scholars dealing with this field of law have not seriously considered. 
Is there, for practical purposes, an unlimited supply of equally attractive 

20. See M. R. Cohen, "Property and Sovereignty," in Law and the Social Order (1933), 
p. 4*1; R, L, Hale, "Coercion and Distribution in a Supposedly Non-Coercive State" 
(1923) 38 Pol $ci. Q. 470; R. L. Hale, "Rate Making and the Revision of the Property 
Concept" (1922) *2 Columbia Law Rev. 209. 

21. "Composition is the passage from a statement about each or every member of 
a collection, taken severally, in one of the premises, to a statement about the collection 
as a whole in the conclusion." Eaton, General Logic (1931), p. 340. An instance of the 
commission of this fallacy, in the present context, would be the statement that the 
court is adding to the wealth of society because it is adding to the wealth of the par- 
ticular individuals whose control over the sales device it protects. 


words under which any commodity can be sold, so that the second seller 
o the commodity is at no commercial disadvantage if he is forced to 
avoid the word or words chosen by the first seller? If this is not the 
case, i.e. if peculiar emotional contexts give one word more sales appeal 
than any other word suitable for the same product, should the peculiar 
appeal of that word be granted by the state, without payment, to the 
first occupier? Is this homestead law for the English language necessary 
in order to induce the first occupier to use the most attractive word 
in selling his product? If, on the other hand, all words are originally 
alike in commercial potentiality, but become differentiated by advertis- 
ing and other forms of commercial exploitation, is this type of business 
pressure a good thing, and should it be encouraged by offering legal 
rewards for the private exploitation of popular linguistic habits and 
prejudices? To what extent is differentiation of commodities by trade 
names a help to the consumer in buying wisely? To what extent is the 
exclusive power to exploit an attractive word, and to alter the quality of 
the things to which the word is attached, a means of deceiving con- 
sumers into purchasing inferior goods? 

Without a frank facing of these and similar questions, 22 legal reason- 
ing on the subject of trade names is simply economic prejudice mas- 
querading in the cloak of legal logic. The prejudice that identifies the 
interests of the plaintiff in unfair competition cases with the interests 
of business 23 and identifies the interests of business with the interests 
of society, will not be critically examined by courts and legal scholars 
until it is recognized and formulated. It will not be recogni/ed or 
formulated so long as the hypostatization of "property rights" conceals 
the circularity of legal reasoning. 

4. How High Is Fair Value? 

Perhaps the most notorious example of circular reasoning in con- 
temporary jurisprudence is that involved in judicial determination of the 
returns to which public utilities are entitled "under the Constitution/' 34 
What courts purport to do in rate cases Is to ascertain the "value" of 
the utility's property and then to fix a price to the consumer which as- 

i. An example of realistic analysis of consequences in this field it Legl*.* The Vestal 
Bill for the Copyright Regittratlof* of De*ipa (1951) 3* Columbia law Rw, 477. 

S. See Schecbler, op, cli *upra note 17, at 851, 

84, The circularity of judicial reasoning In thk field it discuifed in R, L. Hile, 
"Vilue and Vested Rights" (1917) t? Columbia Law Are. 513; 0, R, RIchberg, "Value 
by Judicial Fiat" (**7) 40 Now. L. R&v, 67; J. C. BonMfeht. "The Problem of 
Judicial Valuation** (19^7) *7 CaftimWa XAW JZw, 493. 



sures the utility a fair rate of return upon that value. This would be an 
understandable procedure if the courts meant by "value" either actual 
cost or replacement cost. For almost forty years, however, since the 
famous case of Smyth v. Ames?$ the courts have insisted that it may 
be "unconstitutional*' to allow a utility merely a fair return on the actual 
cost or replacement cost of its property; it must be allowed a fair return 
on the "actual value" of the property. 

What is the actual value of a utility's property? Obviously it is the 
capitalization at current market rates of the allowed and expected profit. 
In a six per cent money market, an enterprise which is allowed to take 
six million dollars profit per annum will be valued at one hundred 
million dollars, one that is allowed three millions per annum, at fifty 
million dollars. The actual value of a utility's property, then, is a func- 
tion of the court's decision, and the court's decision cannot be based in 
fact upon the actual value of the property. That value is created by the 
court; prior to the court's decision and aside from information or belief 
as to what the court will decide, it is not an economic fact. Nor is it 
avowedly an ethical fact based upon a determination of the amount 
which a given utility ought, in the light of social facts and social policies, 
to be allowed to charge its patrons. Judicial reasoning in this field is 
thus entirely mythical, and the actual motivation of courts in reaching 
given decisions is effectively concealed, from all true believers in the 
orthodox legal theology. 

5. When Is Legal Process "Due"? 

Legal reasoning carries a peculiar freight of human hopes and human 
suffering in that realm where the phrase "due process of law" serves 
as a text for judicial review of social legislation. Here, at least, one 
might hope that a "decent respect to the opinions of mankind" would 
lead courts to formulate with some clarity their own conception of 
what it is that they are doing. Yet in no realm does logomachy offer 
more stubborn resistance to realistic analysis. 

What is due process of law? 

One might have supposed from the language of certain cases 26 that 
"due process of law" meant such law as was familiar to the Founding 
Fathers of the Constitution. Thus conceived, the phrase would denote a 
fairly definite concept, and the function of the courts in applying that 

25, 169 U.S. 466 (1898). 

26. See Murray v. Hoboken Land and Improvement Co., 18 How. 272, 280 (U.S. 1855); 
Robertson v. Baldwin* 165 U.S. 275 (1897), and cases cited. 



concept to legislation would be that of objective scholarly inquiry into 
legal history, It is clear, however, that the modern judicial use of the 
due process clauses is not based upon any such historical inquiry. Regu- 
lation of wages and prices, against which these clauses have been directed 
with particular severity, finds ample historical precedent in early colonial 
and English legislation. 27 

Recent judicial utterances suggest a second conception of due process: 
Legislation falls within the "due process" clauses when it is such as 
rational men may approve. Taken seriously, this conception makes of 
our courts lunacy commissions sitting in judgment upon the mental 
capacity of legislators and, occasionally, of judicial brethren. Some such 
conception served as the major premise for the famous brief of Mr. 
Brandeis in the case of Muller v. Oregon, 2 * which marshaled the favor- 
able opinions entertained by individuals of undisputed sanity towards 
legislation restricting the hours of industrial labor for women. But subse- 
quent applications of this technique have found less favor in the eyes 
of the courts, and when Mr. Frankfurter presented to the Supreme 
Court a similar anthology of opinions in favor of minimum wage legis- 
lation for women, the reply of the Supreme Court was that one might 
also make an impressive compilation of unfavorable opinions. 29 The 
fact, then, that reasonable men approve of specific legislation does not 
prevent it from being a violation of "due process of law." 

The phrase "due process of law," then, denotes neither an historical 
nor a psychiatric fact. Does it, perhaps, denote a moral ideal? Whether 
legislation is due or undue or overdue may seem to laymen to be a 
question of social ethics or morality. But such a conception has been 
vigorously repudiated by the courts. Thus Mr. Frankfurter's analysis 
of the social evils which minimum wage legislation might eliminate was 
characterized by the United States Supreme Court as "'interesting but 
only mildly persuasive," and the Court went on to say: 'These are all 
proper enough for the consideration of the lawmaking bodies, since 
their tendency is to establish the desirability or undesirability o the 
legislation; but they reflect no legitimate light upon the question of its 
validity, and that is what we are called upon to decide." so 

27. See, for instance, the New York act of April 5, 1778, "An act to regulate the 
wages of mechanicks and labourers, the prices of goods and commodities, and the 
charges of inn holders within this State, and for other purposes therein mentioned/' 
and other statutes cited in Handler, "Constitutionality of Investigations by the Federal 
Trade Commission" (1928) 8 Columbia Law Rev, 708, 712 n. 141 see also Boudin, 
Government by Judiciary (1932), a> 401, 447. 

nS. 208 U.S. 412 (1908). 

29. Adkins v. Children's Hospital, s6i US. 525, 559 (lo/ss)* 

30. Ibid. 



"Due process of law," then, can no more be defined in social ethical 
terms than in terms of legal history or abnormal psychology. 

In practice, the Supreme Court professes to consider, in a "due process" 
case, primarily its own former adjudications on the subject, apparently 
believing, with the Bellman, 31 that what it says three times must be 
true. But this process of self-fertilization will scarcely account for actual 
decisions. And one may suspect that a court would not consistently hide 
behind a barrage of transcendental nonsense if the grounds of its de- 
cisions were such as could be presented without shame to the public. 

6. The Nature of Legal Nonsense 

It would be tedious to prolong our survey; in every field of law we 
should find the same habit of ignoring practical questions of value or 
of positive fact and taking refuge in "legal problems" which can always 
be answered by manipulating legal concepts in certain approved ways. 
In every field of law we should find peculiar concepts which are not 
defined either in terms of empirical fact or in terms of ethics but which 
are used to answer empirical and ethical questions alike, and thus bar 
the way to intelligent investigation of social fact and social policy. 
Corporate entity, property rights, fair value, and due process are such 
concepts. So too are title, contract, conspiracy, malice, proximate cause, 
and all the rest of the magic "solving words" of traditional jurispru- 
dence. Legal arguments couched in these terms are necessarily circular, 
since these terms are themselves creations of law, and such arguments 
add precisely as much to our knowledge as Moliere's physician's dis- 
covery that opium puts men to sleep because it contains a dormitive 

Now the proposition that opium puts men to sleep because it contains 
a dormitive principle is scientifically useful if "dormitive principle" is 
defined physically or chemically. Otherwise it serves only to obstruct the 
path of understanding with the pretense of knowledge. So, too, the 
proposition that a law is unconstitutional because it deprives persons of 
property without due process of law would be scientifically useful if 

31. "Just the place for a Snarkl" the Bellman cried, 

As he landed his crew with care; 
Supporting each man on the top of the tide 

By a finger entwined in his hair. 
"Just the place for a Snark! I have said it twice: 

That alone should encourage the crew. 
"Just the place for a Snarkl I have said it thrice: 
What I tell you three times is true." 

Lewis Carroll, The Hunting of the Snark, Fit the First 



"property" and "due process" were defined in non-legal terms; other- 
wise such a statement simply obstructs study of the relevant facts. 

If the foregoing instances of legal reasoning are typical, we may sum- 
marize the basic assumptions of traditional legal theory in the following 

Legal concepts (for example, corporations or property rights) are super- 
natural entities which do not have a verifiable existence except to the 
eyes of faith. Rules of law., which refer to these legal concepts, are not 
descriptions of empirical social facts (such as the customs of men or 
the customs of judges) nor yet statements of moral ideals, but are rather 
theorems in an independent system. It follows that a legal argument 
can never be refuted by a moral principle nor yet by any empirical fact. 
Jurisprudence, then, as an autonomous system of legal concepts, rules, 
and arguments, must be independent both of ethics and of such positive 
sciences as economics or psychology. In effect, it is a special branch 
of the science of transcendental nonsense. 


That something is radically wrong with our traditional legal thought- 
ways has long been recognized. Holmes, Gray, Pound, Brooks Adams, 
M. R. Cohen, T. R. Powell, Cook, Oliphant, Moore, Radin, Llewellyn, 
Yntema, Frank, and other leaders of modern legal thought in America, 
are in fundamental agreement in their disrespect for "mechanical juris- 
prudence," for legal magic and word-jugglery. 32 But mutual agreement 
is less apparent when we come to the question of what to do: How are 
we going to get out of this tangle? How are we going to substitute a 

32. See Holmes, "The Path of the Law" (1897) 10 Harv. L, Rev. 457, Collected Legal 
Papers (1930), p. 167; Gray, Nature and Sources of the Law (1909), c. 4-5; Pound, "Law 
in Books and Law in Action" (1910) 44 Am. L. Rev. is; Pound, "Mechanical Juris- 
prudence" (1908) 8 Columbia Law Rev. 605; Brooks Adams, "Law under Inequality: 
Monopoly/' in Centralization and the Law (1906) Lecture *; M, R. Cohen, "The Process 
of Judicial Legislation'* (1914) 48 Am. L. Rev. 161, Law and the Social Order (1933), p. 
MS; T. R, Powell, "The Judiciality of Minimum Wage Legislation" (1924) 37 Han;, L. 
Rev. 545; Cook, "Logical and Legal Bases of the Conflict of Laws" (1924) 33 Yale LJ, 
457; Oliphant, "A Return to Stare Decisis*' (1938) 6 Am. L. School Rev. $15; U. Moore, 
"Rational Basis of Legal Institutions" (1923) 23 Columbia Law Rev. 609; M. Radin, 
"Case Law and Stare Decisis: Concerning Pr&judizienrecht in Amerika" (1933) 33 
Columbia Law Rev. 199; Llewellyn, "A Realistic Jurisprudence The Next Step 1 " 
(1930) 30 Columbia Law Rev. 431; Llewellyn, "Some Realism about Realism: Reipond- 
ing to Dean Pound" (1931) 44 Harv. L. Rev. iss; Yntema, "The Hornbook Method and 
the Conflict of Laws" (1928) 37 Yale LJ. 468; Frank, Law and the Modern Mind 



realistic, rational, scientific account of legal happenings for the classical 
theological jurisprudence of concepts? 

Attempts to answer this question have made persistent use of the 
phrase "functional approach." Unfortunately, this phrase has often been 
used with as little meaning as any of the magical legal concepts against 
which it is directed. Many who use the term "functional" intend no 
more than the vague connotation which the word "practical" conveys 
to the "practical" man. Again, the term "functional approach" is some- 
times used to designate a modern form of animism, according to which 
every social institution or biological organ has a "purpose" in life, and 
is to be judged good or bad as it achieves or fails to achieve this 
"purpose." I shall not attempt to be faithful to these vague usages in 
using the term "functional" I shall use the term rather to designate 
certain principles or tendencies which appear most clearly in modern 
physical and mathematical science and in modern philosophy. For it is 
well to note that the problem of eliminating supernatural terms and 
meaningless questions and redefining concepts and problems in terms 
of verifiable realities is not a problem peculiar to law. It is a problem 
which has been faced in the last two or three centuries, and more espe- 
cially in the last four or five decades, by philosophy, mathematics, and 
physics, as well as by psychology, economics, anthropology, and doubt- 
less other sciences as well. Functionalism, opera tionalism, pragmatism, 
logical positivism, all these and many other terms have been used in 
diverse fields, with differing overtones of meaning and emphasis, to 
designate a certain common approach to this general task of redefining 
traditional concepts and traditional problems. 

It may perhaps clarify the significance of the functional approach 
in law to trace some of the basic contributions which the functional 
method has made in modern science and philosophy. 

i. The Eradication of Meaningless Concepts 

On its negative side (naturally of special prominence in a protestant 
movement), functionalism represents an assault upon all dogmas and 
devices that cannot be translated into terms of actual experience. 

In physics, the functional or operational method is an assault upon 
such supernatural concepts as absolute space and absolute time; in 
mathematics, upon supernatural concepts of real and imaginary, rational 
and irrational, positive and negative numbers. In psychology, William 
James inaugurates the functional method (of which behaviorism is an 
extreme form) by asking the naive question: "Does consciousness ex- 



ist?" 33 Modern "functional grammar" is an assault upon grammatical 
theories and distinctions which, as applied to the English language, 
simply have no verifiable significance such empty concepts, for instance, 
as that of noun syntax, with its unverifiable distinction between a nomi- 
native, an objective, and a possessive case. 34 And passing to the field 
of art, we find that functional architecture is likewise a repudiation of 
outworn symbols and functionless forms that have no meaning, hollow 
marble pillars that do not support, fake buttresses, and false fronts. 35 
So, too, in law. Our legal system is filled with supernatural concepts, 
that is to say, concepts which cannot be defined in terms of experience, 
and from which all sorts of empirical decisions are supposed to flow. 
Against these unverifiable concepts modern jurisprudence presents an 
ultimatum. Any word that cannot pay up in the currency of fact, upon 
demand, is to be declared bankrupt, and we are to have no further deal- 
ings with it, Llewellyn has filed an involuntary petition in bankruptcy 
against the concept Title, 36 Oliphant against the concept Contract, 37 
Haines, Brown, T. R. Powell, Finkelstein, and Cushman against Due 
Process, Police Power, and similar word-charms of constitutional law, 88 
Hale, Richberg, Bonbright, and others against the concept of Fair Value 
in rate regulation, 89 Cook and Yntema against the concept of Vested 
Rights in the conflict of laws. 40 Each of these men has tried to expose 
the confusions of current legal thinking engendered by these concepts 

33. Essays in Radical Empiricism (1912), p. i. Answering this question, James 
asserts, "There is ... no aboriginal stuff or quality of being, contrasted with that of 
which material objects are made, out of which our thoughts of them are made; but 
there is a function in experience which thoughts perform . . ." (pp, 3-4), 

34. See H. N. Rivlin, Functional Grammar (1930); and cf. L. Bloomfield, Language 
(1933), p. 266 et passim, 

35. See F. L. Wright, Modern Architecture (1931). 

36. Llewellyn, Cases and Materials on the Law of Sales (1930), 

37. Oliphant, "Mutuality of Obligation in Bilateral Contracts at Law" (1935) *5 
Columbia Law Rev. 705; (1928) 28 Columbia Law Rev, 997. 

38. C. G. Haines, ''General Observations on the Effects of Personal, Political and 
Economic Influences in the Decisions of Judges" (1922) 17 III L. Rev. 96; R, A. Brown, 
"Police Power Legislation for Health and Personal Safety 1 ' (1929) 4* Harv. , Rev. 
866; T. R. Powell, "The Judicially of Minimum Wage Legislation" (1924) 37 Haw. L. 
Rev. 545; M. Finkelstein, "Judicial Self-Limitation" (1924) 37 Hart;. L. Rev, 338; 
R. E. Cushman, "The Social and Economic Interpretation of the Fourteenth Amend- 
ment" (1922) so Mich, L, Rev. 737, 

39. See note 24, supra. 

40. Cook, "Logical and Legal Bases of the Conflict of Laws" (1984) S3 ^k &J* 
457; Ynterna, "The Hornbook Method and the Conflict of Laws" (1988) 37 Yale LJ, 



and to reformulate the problems in his field in terms which show the 
concrete relevance of legal decisions to social facts. 

2. The Abatement of Meaningless Questions 

It is a consequence of the functional attack upon unverifiable concepts 
that many of the traditional problems of science, law, and philosophy 
are revealed as pseudo-problems devoid of meaning. As the protagonist 
of logical positivism, Wittgenstein, says of the traditional problems of 

Most propositions and questions, that have been written about 
philosophical matters, are not false, but senseless. We cannot, there- 
fore, answer questions of this kind at all, but only state their sense- 
lessness. Most questions and propositions of the philosophers result 
from the fact that we do not understand the logic of our language. 
(They are of the same kind as the question whether the Good is 
more or less identical than the Beautiful.) And so it is not to be 
wondered at that the deepest problems are really no problems. 41 

The same thing may be said of the problems of traditional juris- 
prudence. As commonly formulated, such "problems" as, "What is the 
holding or ratio deddendi of a case?" 42 or "Which came first the law 
or the state?" 43 or "What is the essential distinction between a crime 
and a tort?" 44 or "Where is a corporation?" are in fact meaningless, 
and can serve only as invitations to equally meaningless displays of 
conceptual acrobatics. 

Fundamentally there are only two significant questions in the field 
of law. One is, "How do courts actually decide cases of a given kind?" 

41. Wittgenstein, Tractatus Logico-Philosophicus (1922) prop. 4,003, And cf. James, 
Pragmatism (1908): "The pragmatic method is primarily a method of settling meta- 
physical disputes that otherwise might be interminable. . . . The pragmatic method 
in such cases is to try to interpret each notion by tracing its respective practical 
consequences. ... If no practical differences whatever can be traced, then the alterna- 
tives mean practically the same thing, and all dispute is idle. ... It is astonishing to 
see how many philosophical disputes collapse into insignificance the moment you sub- 
ject them to this simple test of tracing a practical consequence" (pp. 45-49)' 

42. See Goodhart, "Determining the Ratio Decidendi of a Case" (1930) 40 Yale L.J. 
161; and cf. Llewellyn, Bramble Bush (1930), p. 47. 

43. Fortunately there is very little literature in the English language on this problem. 
German jurists, however, are inordinately fond of it 

44. See C. K. Allen, Legal Duties and Other Essays in Jurisprudence (1931), p. *3& 
And cf. W. W. Cook, Book Review (1932) 43 Yale LJ. 299. 



The other is, <4 How ought they to decide cases of a given kind?*' Un- 
less a legal "problem" can be subsumed under one of these forms, it 
is not a meaningful question and any answer to it must be nonsense. 45 

3. The Redefinition of Concepts 

Although the negative aspect of the functional method is apt to assume 
peculiar prominence in polemic controversy, the value of the method 
depends, in the last analysis, upon its positive contributions to the ad- 
vancement of knowledge. Judged from this standpoint, I think it is fair 
to say that the functional method has justified itself in every scientific 
field to which it has been actually applied, and that functional redefini- 
tion of scientific concepts has been the keynote of most significant 
theoretical advances in the sciences during the last half century. 

The tremendous advance made in our understanding of the founda- 
tions of pure mathematics, achieved through the work of such men as 
Frege, Peano, Whitehead, and Russell, 46 offers an illuminating example 
of the functional method in action. 

Mathematics, fifty years ago, contained as many unanalyzed "fictions," 
supernatural concepts, unreal questions, and unjustified operations as 
classical jurisprudence. High school students are still taught to subtract 
the integer seven from the integer two, which is logically impossible. 
An integer is the number of a class, and obviously a class of seven 
members cannot be contained in, or subtracted from, a class of two 
members. The student who refuses to believe in such supernatural 
subtraction is entirely justified, although he must expect scant mercy 
from ignorant teachers and examiners (as must the law student who 
refuses to answer senseless questions of law and merely points out their 
senselessness). Nevertheless, the mathematical fiction, like the legal fiction 
(e.g. the spatial location of a corporation), represents a confused per- 
ception of a significant fact, and it is the province of functional analysis 
to untangle the confusion and find the fact. It is a fact that if you move 
seven units in one direction in the direction of bankruptcy, say, or in 
the direction of lowered temperature and call that direction "minus" 
and then move two units in the opposite direction "plus" you have 
in effect moved five units in the first the "minus*'- direction. Un- 
doubtedly, it is useful to invent or define mathematical terms which will 

45. Cf. F. S. Cohen, "What is a Question?" [above, p. 3]. 

46. See Russell, Principles of Mathematics (1903); Introduction to Mathematical 
Philosophy (1919); Russell and Whitehead, Principia Mathetnatica (1910); Frege, !>*> 
Grundlagen der Arithmetik (1884). 



describe these two motions or operations and the relation between them 
(as it is useful to invent legal terms to describe the corporate activities 
of human beings). But such mathematical terms, it is important to recog- 
nize, are not numbers, as "number" is ordinarily defined (i.e. they are 
not integers). What, then, are these novel entities? Classical mathematics 
conceived of these entities as integers acting, under a special dispen- 
sation, in supernatural ways. Modern mathematics shows that these 
entities, known as "sign numbers," are not integers at all, but rather 
constructs or functions of integers. The number "7" is the operation 
of moving from any integer to its immediate predecessor in the series of 
integers, repeated seven times. The number "+7" is the converse opera- 
tion, i.e. the operation of moving from any integer to its immediate 
successor, repeated seven times. The number "+7" is therefore some- 
thing quite different from the integer "7." It is, however, a logical 
function or construct of the integer seven, since the integer seven ap- 
pears in the definition of "+7" as an operation repeated "seven" times. 

Similarly, modern advances in mathematics have made it clear that 
rational and irrational, real and imaginary, numbers are not numbers 
at all, in the original sense of the term, but are functions of such 
numbers. 47 The so-called arithmetization of mathematics, and the defi- 
nition of the concepts of mathematics by Whitehead and Russell, as con- 
structs of certain simple logical terms, have stripped mathematical terms 
of their supernatural significations, illumined and eliminated hidden in- 
consistencies, and clarified the relationships of mathematical concepts 
not only to each other but to the material world. 

A similar use of the functional method has characterized the most 
significant advances of modern philosophy. The attack upon tran- 
scendental conceptions of God, matter, the Absolute, essence and acci- 
dent, substance and attribute, has been vigorously pressed by C. S. Peirce, 
James, Dewey, Russell, Whitehead, C. I. Lewis, C. D. Broad, and most 
recently by the Viennese School, primarily by Wittgenstein and Carnap. 48 

47. See Russell, Introduction to Mathematical Philosophy (1919), c. 7. 

48. See C. S. Peirce, Chance, Love and Logic (1923); Collected Papers (1951-1934), 
especially Vol. 5; James, Pragmatism (1908); Essays in Radical Empiricism (1912); 
Dewey, "Appearing and Appearance," in Philosophy and Civilization (1931), p. 51; 
Russell, Our Knowledge of the External World as a Field for Scientific Method in 
Philosophy (1914); Mysticism and Logic (1918); Whitehead, The Principles of Natural 
Knowledge (1919); The Concept of Nature (1920); C. I. Lewis, Mind and the World- 
Order (1929); C. D. Broad, Scientific Thought (1923); Wittgenstein, Tractatus Logico- 
Philosophicus (1922); Carnap, "Ueberwindung der Metaphysik durch logische Analyse 
der Sprache" (1932) t Erkenntnis No. 4; J. E, Boodin, "Functional Realism" (1934) 43 
Philosophical Review 147. 



These men fall into various schools pragmatism, pragmaticism (which 
is the word Peirce shifted to when he saw what his followers were doing 
to the word "pragmatism"), neo-realism, critical realism, functional real- 
ism, and logical positivism. It would be unfair to minimize the real 
differences between some of these schools, but in one fundamental respect 
they assume an identical position. This is currently expressed in the 
sentence, "A thing is what it does." More precise is the language of 
Peirce: "In order to ascertain the meaning of an intellectual conception 
one should consider what practical consequences might conceivably result 
by necessity from the truth of that conception; and the sum of these 
consequences will constitute the entire meaning of the conception." 49 
The methodological implications of this maxim are summed up by 
Russell in these words: "The supreme maxim in scientific philosophising 
is this: Wherever possible, logical constructions are to be substituted for 
inferred entities." 50 

In other words, instead of assuming hidden causes or transcendental 
principles behind everything we see or do, we are to redefine the con- 
cepts of abstract thought as constructs, or functions, or complexes, or 
patterns, or arrangements, of the things that we do actually see or do. 
All concepts that cannot be defined in terms of the elements of actual 
experience are meaningless. 

The task of modern philosophy is the salvaging of whatever signifi- 
cance attaches to the traditional concepts of metaphysics, through the 
redefinition of these concepts as functions of actual experience. What- 
ever differences may exist among modern philosophers in the choice 
of experiential terms which are to serve as the basic terms of functional 
analysis "events," "sensa," and "atomic facts" are but a few of these 
basic terms few would disagree with the point of view expressed by 
William James when he says that in our investigation of any abstract 
concept the central question must be: "What is its cash value in terms 
of particular experience? and what special differences would come into 
the world if it were true or false?" 61 

A similar use of the functional method characterizes recent advances 
in physics. Instead of conceiving of space as something into which 
physical things fit, but which somehow exists, unverifiably, apart from 
the things that fill it (as the Common Law is supposed to exist apart from 
and prior to actual decisions), and then assuming that there is an ether 
that fills space when it is empty, modern physicists conceive space as a 

49. C. S. Peirce, Collected Papers, 5, 6. 

50. Russell, Mysticism and Logic (1918), p. 155. 

51. James, "The Pragmatic Method" (1904) i Jour, of Philosophy 673. 



manifold of relations between physical objects or events. The theory of 
relativity begins with the recognition that relations between physical 
objects or events involve a temporal as well as a spatial aspect. Thus 
it becomes convenient for certain purposes to substitute the notion of 
space-time for that of space, or even to substitute a notion which in- 
cludes mass as well as space and time. 

The parallel between the functional method of modern physics and 
the program of realistic jurisprudence is so well sketched by a distin- 
guished Chinese jurist that I can only offer a quotation without com- 
ment: 52 

Professor Eddington, in a recent book on "The Nature of the 
Physical World," observes: "A thing must be defined according to the 
way in which it is in practice recognized and not according to some 
ulterior significance that we suppose it to possess/' So Professor 
Bridgman, in "The Logic of Modern Physics": 

"Hitherto many of the concepts of physics have been defined in 
terms of their properties/' But now, "in general, we mean by any 
concept nothing more than a set of operations; the concept is 
synonymous with the corresponding set of operations. If the con- 
cept is physical, as of length, the operations are actual physical 
operations, namely, those by which length is measured; or if the 
concept is mental, as of mathematical continuity, the operations 
are mental operations, namely those by which we determine 
whether a given aggregate of magnitudes is continuous/' 
Now, this way of dealing with concepts was precisely what Holmes 
introduced into the science of law early in the *8o's. Before dis- 
cussing the significance and possibilities of the new method, let me 
list here some of his definitions of things juridic: 
Law: "The prophecies of what the courts will do in fact, and 
nothing more pretentious, are what I mean by the law." 

"But for legal purposes a right is only the hypostasis of a 
prophecy the imagination of a substance supporting the fact 
that the public force will be brought to bear upon those who do 
things said to contravene it just as we talk of the force of gravi- 
tation accounting for the conduct of bodies in space." 
Duty: "A legal duty so called is nothing but a prediction that if 

52. John C. H. Wu, "Realistic Analysis of Legal Concepts: A Study in the Legal 
Method of Mr. Justice Holmes" (1932) 5 China L. Rev. i, 2. 



a man does or omits certain things he will be made to suffer in 
this or that way by judgment of the court; and so of a legal right." 

Contract: "The duty to keep a contract at common law means a 
prediction that you must pay damages if you do not keep it and 
nothing else. If you commit a tort, you are liable to pay a com- 
pensatory sum. If you commit a contract, you are liable to pay a 
compensatory sum unless the promised event comes to pass, and 
that is all the difference." 

It may be conceded at the outset that all these definitions are 
capable of being further developed or improved upon: The im- 
portant point to note is the complete departure from the way the 
old Classical Jurisprudence defined things. Hostile as he was to the 
traditional logic, Holmes touched the springs of the neo-realistic 
logic in his analysis of legal concepts. He departed entirely from the 
subject-predicate form of logic, and employed a logic of relations. 
He did not try to show how a legal entity possesses certain inherent 
properties. What he was trying everywhere to bring out is: If a 
certain group of facts is true of a person, then the person will 
receive a certain group of consequences attached by the law to that 
group of facts. Instead of treating a legal concept as a substance 
which in its nature necessarily contains certain inherent properties, 
we have here a logic which regards it as a mere signpost of a real 
relation subsisting between an antecedent and a consequent, and, as 
one of the New Realists so aptly puts it, all signposts must be kept 
up to date, with their inscriptions legible and their pointing true. 
In short, by turning the juristic logic from a subject-predicate form 
to an antecedent-consequent form, Holmes virtually created an in- 
ductive science of law. For both the antecedent and the consequent 
are to be proved and ascertained empirically, 

In brief, Holmes and, one should add, Hohfeld 58 have offered a logical 
basis for the redefinition of every legal concept in empirical terms, 
i.e. in terms of judicial decisions. The ghost-world of supernatural legal 
entities to whom courts delegate the moral responsibility of deciding 
cases vanishes; in its place we see legal concepts as patterns of judicial 
behavior, behavior which affects human lives for better or worse and is 
therefore subject to moral criticism. Of the functional method in legal 
science, one may say, as Russell has said of the method in contemporary 
philosophy, "Our procedure here is precisely analogous to that which 

53. See Hohfeld, Fundamental Legal Conceptions (1919). 



has swept away from the philosophy of mathematics the useless menagerie 
of metaphysical monsters with which it used to be infested." 54 

4. The Redirection of Research 

It is often easier to distinguish a school of thought by asking not, 
"What basic theory does it defend?" but rather, "What basic question 
does it propound?" 

A failure to recognize that the law is a vast field, in which different 
students are interested in diverse problems, has the unfortunate effect 
of making every school of legal thought an ex officio antagonist of every 
other school. Dean Pound's classification of jurists into mutually ex- 
clusive "analytical/' "historical," "philosophical," and "sociological" 
schools, with sub-species too numerous to mention, 55 has given a good 
deal of prestige to the idea that a new school of jurisprudence must 
offer a revolutionary threat to all existing schools. It would be un- 
fortunate to regard "functionalism" in law as a substitute for all other 
"isms." Rather, we must regard functionalism, in law as in anthropology, 
economics, and other fields, as a call for the study of problems which 
have been neglected by other scientific methods of investigation. 

In general, when one comes upon a strange fact and seeks to un- 
derstand it, there are four inquiries he can pursue. 

In the first place, our investigator can classify the fact either by 
putting an arbitrary label upon it or by discerning in the fact to be 
explained the significant similarities and differences which relate it to 
other facts. 

Again, one may seek to discover the genesis of the fact in question, 
to trace its historical antecedents. 

In the third place, one may inquire into the nature of the fact pre- 
sented, endeavoring by logical analysis to resolve it into simpler ele- 

A fourth possible approach seeks to discover the significance of the 
fact through a determination of its implications or consequences in a 
given mathematical, physical, or social context. 

It is this last approach to which the term "functional" has been ap- 
plied. Obviously, it is not the only way of gathering useful information, 
and obviously, it is largely dependent upon the results of classificatory 
or taxonomic investigation, genetic or historical research, and analytical 
inquiries. Finally, it must be remarked that the functional method is 
not a recent invention, Plato's attempt to define "justice" by assessing 

54. Russell, op. cit. supra note 50, 

55. See Pound, Outlines of Lectures on Jurisprudence (4th ed., 1928), c. JL. 



the activities of a just state, 56 and Aristotle's conception of the soul 
as the way a living body behaves 57 are illustrious examples of functional 
analysis. So, too, Hume's analysis of causation in terms of uniformity 
of succession, and Berkeley's analysis of matter in terms of its appear- 
ances, are significant attempts to redefine supernatural concepts in 
natural terms, 58 to wash ideas in cynical acid (borrowing Holmes' sug- 
gestive phrase). 59 

If functional analysis seems novel in the law, this is perhaps traceable 
to the general backwardness of legal science, which is the product of 
social factors that cannot be exorcised by new slogans. 

With these caveats against the notion that the functional approach 
is a new intellectual invention which will solve all the problems of law 
(or of anthropology, economics, or any other science), we may turn 
to the significant question: "What are the new directions which the 
functional method will give to our scientific research?" 

In attempting to answer this question for the field of law we may 
find suggestive precedents in other social sciences. 

Applied to the study of religion, for instance, the functional approach 
has meant a shift of emphasis away from the attempt to systematize 
and compare religious beliefs, away from concern with the genesis and 
evolution of religions, and towards a study of the consequences of various 
religious beliefs in terms of human motivation and social structure. 
Outstanding examples of this focus are Weber's and Tawney's studies 
of the influence of Protestantism in the development of modern capital- 
ism, 60 and James' essays on the psychological significance for the in* 
dividual of various religious beliefs. 61 The functional approach asks of 
every religious dogma or ritual: How does it work? How does it serve 
to mold men's lives, to deter from certain avenues of conduct and 
expression, to sanction accepted patterns of behavior, to produce or 
alleviate certain emotional stresses, to induce social solidarity, to lay 

56. Plato, Republic, 

57. Aristotle, DC Anima, /, i; 2, i. 

58. Cf. James, Pragmatism (1908): "There is absolutely nothing new in the prag- 
matic method. Socrates was an adept at it, Aristotle used it methodically. Locke, 
Berkeley, and Hume made momentous contributions to truth by its means" (at p. 50). 
See, also, James, "The Pragmatic Method" (1904) i Jour, of Philosophy 675, 

59. ". . . the vague circumference of the notion of duty shrinks and at the same 
time grows more precise when we wash it with cynical acid and expel everything except 
the object of our study, the operations of the law." Holmes, "The Path of the Law" 
(1897) 10 Harv. L. Rev. 457, 462. 

60. Max Weber, The Protestant Ethic and the Spirit of CapitaUsm t tr. by Parson* 
(1930); R. H. Tawney, Religion and the Rise of Capitalism (1926). 

61. James, The Varieties of Religious Experience (190). 



a basis for culture accumulation by giving life after death to the visions, 
thoughts, and achievements of mortal men. 62 The significance of a 
religious dogma is found not in a system of theological propositions 
but in a mode of human conduct. The functional approach demands 
objective description of this conduct, in which the empirical significance 
of the religious belief is embodied. Just so, the functional approach in 
physics captures the significance of a physical concept in the actual 
processes and operations of the physicist, rather than in the theological 
or metaphysical interpretations which physicists put upon their own 
activities. It is an application of this same approach that discovers the 
significance of a legal principle in the actual behavior of judges, sheriffs, 
and litigants rather than in conventional accounts of the principles that 
judges, sheriffs, and litigants are "supposed" to follow. 

In anthropology, the functional method represents a movement away 
from two types of study: the naive reporting and classification of strik- 
ing human peculiarities; and the more sophisticated attempt to trace 
the historical origin, evolution, and diffusion of "complexes." Those 
who have embraced the functional approach (not all of whom have in- 
voked the word "functional"), have been primarily concerned to trace 
the social consequences of diverse customs, beliefs, rituals, social arrange- 
ments, and patterns of human conduct. This approach has led to fertile 
fields that most earlier investigators missed. In the study of primitive 
art, the new focus has brought into the foreground the question of the 
craftsman's motivations and purposes, the significance of art as an 
individualizing or socializing force, the whole problem of interplay be- 
tween materials, techniques, and social needs. 63 The study of primitive 
social organization comes increasingly to deal with the functional signifi- 
cance of family, clan, and tribal groupings as social determinants in 
the production, distribution, and use of property, as well as in the 
non-economic human relationships of education, religion, play, sex, and 
companionship.^ 4 In the study of primitive law, the functional approach 
raises to the fore the problem of incentives to obedience and the efficacy 

62. Cf. Kaplan, Judaism as a Civilization (1934), c. 26 ("Functional Method of 
Interpretation"); Elwang, The Social Function of Religious Belief (Univ. of Mo. Studies, 
Social Science Series, Vol. 2, No. i, 1908); Foster, The Function of Religion in Man's 
Struggle for Existence (1909). 

63. See Boas, Primitive Art (1927). 

64. See Boas, "The Social Organization and the Secret Societies of the Kwakiutl 
Indians" (1895) Report of UJS. Nat, Museum, 315; Malinowski, The Family among the 
Australian Aborigines (1913); Lowie, Primitive Society (1920); Goldenweiser, History, 
Psychology and Culture (1933) Part III ("Totemism"); W. C. McKern, "Functional 
Families of the Patwin" (Univ. of Calif. Pub, in Amer. Archaeology and Ethnology, Vol. 
13, No. 7), 



of these incentives, the techniques of law enforcement, and the relations 
of rivalry or supplementation between legal sanctions and other social 
forces, 65 

A similar use of the functional approach is characteristic of modern 
political science, in which revolt against the classical supernatural con- 
ception of sovereignty is a point of agreement uniting the most diverse 
schools of contemporary thought. Typical is the following statement: 

By institutions we merely mean collective behavior patterns, the 
ways in which a community carries on the innumerable activities 
of social life. . . . Society achieves certain results through collective 
political actions. The means that it uses are the behavior patterns 
which we call courts, legislative bodies, commissions, electorates, 
administration. We idealize these institutions collectively and per- 
sonify them in the State. But this idealization is pure fancy. The 
State as a juristic or ideal person is the veriest fiction. It is real only 
as a collective name for governmental institutions. 66 
Under the influence of the functional approach political theory ceases to 
be a science of pure forms, and comes increasingly to grips with the 
psychological motives and the technological forces that function through 
political instruments. 

In economics we have witnessed a similar shift of research from the 
taxonomic or systematic analysis of economic "norms" to the study of 
trie actual economic behavior of men and nations. Veblen's indictment 
of classical economic theory may be applied word for word to classical 
jurisprudence, if we merely substitute for the terms "economic" and 
"economist" the terms "legal" and "jurist": 

The standpoint of the classical economists, in their higher or 
definitive syntheses and generalizations, may not inaptly be called 
the standpoint of ceremonial adequacy. ... In effect, this precon- 
ception imputes to things a tendency to work out what the instructed 
common sense of the time accepts as the adequate or worthy end 
of human effort. . . . This ideal of conduct is made to serve as a 
canon of truth . . . 

65. See Malinowski, Crime and Custom in Swage Society (19*6); Hogbin, Law and 
Order in Polynesia (1934). In his introduction to the latter volume, Malinowski writes: 
"Modern anthropology concentrates, above all, on what is now usually called the 
function of a custom, belief or institution. By function we mean the part which 1$ 
played by any one factor of a culture within the general scheme," 

66. W. J. Shepard, "Democracy in Transition" (1935) 9 Am* Pol Sci, Rev. r, ct 
H. J. Laski, Grammar of Politics (*d ed.> 1929); W. Y. Elliott, The Pragmatic Revolt 
in Politics (1928). 



The metaphors are effective, both in their homiletical use and as 
a labor-saving device, more effective than their user designs them 
to be. By their use the theorist is enabled serenely to enjoin himself 
from following out an elusive train of causal sequence. . . . The 
scheme so arrived at is spiritually binding on the behavior of the 
phenomena contemplated. . . . Features of the process that do not 
lend themselves to interpretation in terms of the formula are ab- 
normal cases and are due to disturbing causes. In all this the agencies 
or forces causally at work in the economic life process are neatly 
avoided. The outcome of the method, at its best, is a body of 
logically consistent propositions concerning the normal relations of 
things a system of economic taxonomy. 67 

The same "standpoint of ceremonial adequacy" has to some extent 
characterized the works of our classical jurists, such masters of the 
law as Beale, Williston, and even Wigmore. For them, as for the classical 
economists, it was easy to avoid "an elusive train of causal sequence." 
Principles, conceived as "spiritually binding on the behavior of the 
phenomena contemplated," diverted their attention from the hard facts 
of the legal world, the human motivations and social prejudices of 
judges, the stretching or shrinking of precedents in every washing, the 
calculations of juries, and the fact of legislation, and at the same time 
diverted attention from the task of legal criticism. 68 

The age of the classical jurists is over, I think. The "Restatement 
of the Law" by the American Law Institute is the last long-drawn-out 
gasp of a dying tradition. 69 The more intelligent of our younger law 
teachers and students are not interested in "restating" the dogmas of 
legal theology. There will, of course, be imitators and followers of the 
classical jurists, in the years ahead. But I think that the really creative 
legal thinkers of the future will not devote themselves, in the manner of 
Williston, Wigmore, and their fellow masters, to the taxonomy of legal 
concepts and to the systematic explication of principles of "justice" 

67. Veblcn, "Why Is Economics Not an Evolutionary Science?" in The Place of 
Science in Modern Civilization (1919) pp, 56, 65-67. 

68. To say this is not to deny that such legal scholars have performed yeoman 
service in clarifying the logical implications and inconsistencies of judicial doctrines. 
Such analysis is useful, but it is not the sum and substance of legal science. Cf. F, S. 
Cohen, Ethical Systems and Legal Ideals (1933), pp. 235-37. 

69. See M. Franklin, "The Historic Function of the American Law Institute: Re- 
statement as Transitional to Codification" (1934) 47 Han/, L. Rev. 1367; and cf. Patter- 
son, "The Restatement of the Law of Contracts" (1933) 33 Columbia Law Rev. 397; 
E, S. Robinson, "Law An Unscientific Science" (1935) 44 Yale LJ. 235, 261. 



and "reason," buttressed by "correct" cases. Creative legal thought will 
more and more look behind the pretty array of "correct" cases to the 
actual facts of judicial behavior, will make increasing use of statistical 
methods in the scientific description and prediction of judicial behavior, 
will more and more seek to map the hidden springs of judicial decision 
and to weigh the social forces which are represented on the bench. And 
on the critical side, I think that creative legal thought will more and 
more look behind the traditionally accepted principles of "justice" and 
"reason" to appraise in ethical terms the social values at stake in any 
choice between two precedents. 

"Social policy" will be comprehended not as an emergency factor in 
legal argument but rather as the gravitational field that gives weight to 
any rule or precedent, whether it be in constitutional law, in the law 
of trade-marks, or in the most technical details of legal procedure. 

There is implied in this shifting of the paths of legal research a 
change in the equipment needs of the student of law. Familiarity with 
the words of past judicial opinions and skill in the manipulation of legal 
concepts are not enough for the student who seeks to understand the 
social forces that control judicial behavior, nor for the lawyer who seeks 
to use these forces. 70 

The vested interests of our law schools in an "independent" science 
of law are undermined by every advance in our knowledge of the social 
antecedents and consequences of judicial decision. It becomes the part of 
discretion, in law schools aware of such advances, to admit that legal 
science necessarily involves us in psychology, economics, and political 
theory. Courses in our more progressive law schools are beginning to 
treat, most gingerly, of the psychological doctrines embedded in our 
rules of evidence, the sociological theories assumed in our criminal law, 
the economic assumptions embalmed in our doctrines of constitutional 
law, and the psychological, sociological, and economic facts which give 
force and significance to rules and decisions in these and other fields 
of law. The first steps taken are clumsy and evoke smiles of sympathy 
or roars of laughter from critics of diverse temperaments. The will to 
walk persists. 

For the lawyer, no less than for the legal scholar, handling of materials 
hitherto considered "non-legal" assumes increasing importance. And 
courts that shut their doors to such non-legal materials, laying the taboos 
of evidence law upon facts and arguments that reveal the functional 

70. The implications of the functional method for legal education arc carefully 
traced in Keyserling, "Social Objectives in Legal Education" (1955) $$ Columbia Law 
Rev. 437. 



social significance of a legal claim or a legal precedent, will eventually 
learn that society has other organs legislatures and legislative com- 
mittees and administrative commissions of many sorts that are willing 
to handle, in straightforward fashion, the materials, statistical and de- 
scriptive, that a too finicky judiciary disdains. 


The significance of the functional method in the field of law is clarified 
if we consider the bearings of this method upon four traditional legal 
problems: (i) The definition of law; (2) The nature of legal rules and 
concepts; (3) The theory of legal decisions; and (4) The role of legal 

j. The Definition of Law 

The starting point of functional analysis in American jurisprudence 
is found in Justice Holmes' definition of law as "prophecies of what the 
courts will do in fact." It is in "The Path of the Law," 71 that this 
realistic conception of law is first clearly formulated: 

If you want to know the law and nothing else, you must look 
at it as a bad man, who cares only for the material consequences 
which such knowledge enables him to predict, not as a good one, 
who finds his reasons for conduct, whether inside the law or outside 
of it, in the vaguer sanctions of conscience. . . . Take the funda- 
mental question, What constitutes the law? You will find some text 
writers telling you that it is something different from what is de- 
cided by the courts of Massachusetts or England, that it is a system 
of reason, that it is a deduction from principles of ethics or admitted 
axioms or what not, which may or may not coincide with the de- 
cisions. But if we take the view of our friend the bad man we shall 
find that he does not care two straws for the axioms or deductions, 
but that he does want to know what the Massachusetts or English 
courts are likely to do in fact. I am much of his mind. The 
prophecies of what the courts will do in fact, and nothing more 
pretentious, are what I mean by the law. 

71. Holmes, "Path of the Law" (1897) 10 Harv. L. Rev. 457, 459-61; Collected Legal 
Papers (1921) p. 167, 171-73. A more precise definition, following Holmes, is given 
in C. J. Keyser, "On the Study of Legal Science" (1929) 38 Yale LJ. 413. 



A good deal of fruitless controversy has arisen out of attempts to 
show that this definition of law as the way courts actually decide cases 
is either true or false. 72 A definition of law is useful or useless. It is not 
true or false, any more than a New Year's resolution or an insurance 
policy, A definition is in fact a type of insurance against certain risks 
of confusion. It cannot, any more than can a commercial insurance 
policy, eliminate all risks. Absolute certainty is as foreign to language 
as to life. There is no final insurance against an insurer's insolvency. 
And the words of a definition always carry their own aura of ambiguity. 
But a definition is useful if it insures against risks of confusion more 
serious than any that the definition itself contains. 

"What courts do" is not entirely devoid of ambiguity. There is room 
for disagreement as to what a court is, whether, for instance, the Inter- 
state Commerce Commission or the Hague Tribunal or the Council of 
Tesuque Pueblo is a court, and whether a judge acting in excess of 
those powers which the executive arm of the government will recognize 
acts as a court. There may even be disagreement as to the line of dis- 
tinction between what courts do and what courts say, in view of the 
fact that most judicial behavior is verbal. But these sources of ambiguity 
in Holmes' definition of law are peripheral rather than central, and 
easily remedied. They are, therefore, far less dangerous sources of con- 
fusion than the basic ambiguity inherent in classical definitions of law 
which involve a confusion between what is and what ought to be. 

72. For examples of such argument see Dickinson, "Legal Rules: Their Function in 
the Process of Decision" (1931) 79 V. of Pa, Law Rev, 833; H, Kantorowicz, "Some 
Rationalism about Realism" (1934) 43 ^^ **J- IS 4: Frank, Law and the Modem 
Mind (1930), pp, 127-28. The vicious circle in Dickinson's attempted refutation of the 
realistic definition of law I have elsewhere analyzed. See F. S. Cohen, Ethical Systems 
and Legal Ideals (1933), p. 12, n. 16, Kantorowicz repeats the same argument, empha- 
sizing the charge that a definition of law in terms of court decisions "puts the cart 
before the horse" and is as ridiculous as a definition of medicine in terms of the be- 
havior of doctors. The parallel, though witty, is inapt: The correct analogy to a defi- 
nition of the science of law as description of the behavior of judges would be a 
definition of the science of medicine as a description of the behavior of certain para- 
sites, etc. Kantorowicz accepts uncritically the metaphysical assumption that definition 
is a 'one-way passage from the more general to the less general. But modern logic has 
demonstrated the hollowness of this assumption. It is useful for certain purposes to 
define points as functions of lines. For other purposes it is useful to define lines as 
functions of points. It is just as logical to define law in terms of courts a* the other 
way about. The choice is a matter of convenience, not of logic or truth, 

The same metaphysical fallacy vitiates the opposite argument of Frank, namely, that 
"primary" reality is particular and concrete, so that a definition of law must necessarily 
be in terms of actual decisions. To the eyes of modern logic, the world contains things 
and relations, neither of which can claim a superior grade of reality, One can start 
a fight or a scientific inquiry either with a concrete fact or with a general principle. 



The classical confusion against which realistic jurisprudence is a 
protest is exemplified in Blackstone's classical definition of law as "a 
rule of civil conduct, prescribed by the supreme power in a State, com- 
manding what is right, and prohibiting what is wrong." 73 

In this definition we have an attempt to unite two incompatible 
ideas which, in the tradition of English jurisprudence, are most closely 
associated with the names of Hobbes and Coke, respectively. 

Hobbes, the grandfather of realistic jurisprudence, saw in law the 
commands of a body to whom private individuals have surrendered their 
force. In a state of nature there is war of all against all. In order to 
achieve peace and security, each individual gives up something of his 
freedom, something of his power, and the commands of the collective 
power, that is the state, constitute law. 

Hobbes' theory of law has been very unpopular with respectable 
citizens, but I venture to think that most of the criticism directed against 
it, in the last two and a half centuries, has been based upon a miscon- 
ception of what Hobbes meant by a state of nature. So far as I know, 
Hobbes never refers to the state of nature as an actual historical era, at 
the end of which men came together and signed a social contract. The 
state of nature is a stage in analysis rather than a stage of history. It 
exists today and has always existed, to a greater or lesser degree, in 
various realms of human affairs. To the extent that any social relation- 
ship is exempt from governmental control it presents what Hobbes calls 
a state of nature. 

In international relations today, at least to the extent that nations 
have not effectively surrendered their power through compacts establish- 
ing such rudimentary agencies of international government as the 
League of Nations or the Universal Postal Union, there is in fact a 
state of nature and a war of all against all. This war, as Hobbes insists, 
is present potentially before actual hostilities break out. Not only in 
international relations, but in industrial relations today do we find 
war of all against all, in regions to which governmental control has not 
been extended, or from which it has been withdrawn if it existed. 

Mutual concessions and delegations of power involved in an arbitra- 
tion contract, an international treaty, an industrial "code," a corporate 
merger, or a collective labor agreement, are steps in the creation of 
government, and call into operation new rules of law and new agencies 
of law enforcement. Governments do not arise once and for all. Govern- 
ment is arising today in many regions of social existence, and it arises 
wherever individuals find the conflicts inherent in a state of nature 
unendurable. The process by which government is created and its com- 

73. BI. Corara,* 44* 



mands formulated is a process of human bargaining, based upon mutual 
consent but weighted by the relative power of conflicting individuals 
or groups. 

In all this conception of law, there is no appeal to reason or goodness. 
Law commands obedience not because of its goodness, or its justice, 
or its rationality, but because of the power behind it. While this power 
does rest to a real extent upon popular beliefs about the value of 
certain legal ideals, it remains true today, as Hobbes says in his Dialogue 
on the Common Law, "In matter of government, when nothing else is 
turned up, clubs are trump/' 74 

Quite different from this realistic conception of law is the theory 
made famous by Coke that law is only the perfection of reason. 75 This 
is a notion which has had considerable force in American constitutional 
history, having served first as a basis for popular revolution against 
tyrannical violations of "natural law" and the "natural rights" of Eng- 
lishmen, and serving more recently as a judicial ground for denying 
legality to statutes that judges consider "unreasonable." It would be 
absurd to deny the importance of this concept of natural law or justice 
as a standard by which to judge the acts of rulers, legislative, executive 
or judicial. It is clear, however, that the validity of this concept of law 
lies in a realm of values, which is not identical with the realm of social 

The confusion and ambiguity which infest the classical conception 
of law, as formulated by Blackstone and implicitly accepted by most 
modern legal writers, arise from the attempt to throw together two in- 
consistent ideas. Blackstone attempts in effect to superimpose the pic- 
ture of law drawn by the tender-minded hypocrite, Coke, upon the pic- 
ture executed by the tough-minded cynic, Hobbes, and to give us a 
composite photograph. Law, says Blackstone, is "a rule of civil conduct 
prescribed by the supreme power in a State (Hobbes speaking) com- 
manding what is right and prohibiting what is wrong (Coke speak- 
ing)." 7e Putting these two ideas together, we have a fertile source of 
confusion, which many important legal scholars since Blackstone have 
found about as useful in legal polemics as the ink with which a cuttlefish 
befuddles his enemies. 

74. Hobbes, Dialogue between a Philosopher and a Student of the Common Law$ of 
England (1681), "Of Punishments." 

75. Co. Litt.* 976. 

76. That "right" and "wrong" are used in this definition as ethical, rather than 
strictly legal, terms is made clear in Blackstone's own exegesis upon his definition, 
Cornm,* 54-55. 


Those theorists who adhere to the Blackstonian definition of law 
are able to spin legal theories to the heart's content without fear of refu- 
tation. If legislatures or courts disagree with a given theory, it is a 
simple matter to show that this disagreement is unjust, unreasonable, 
monstrous and, therefore, not "sound law." On the other hand, the 
intruding moralist who objects to a legal doctrine on the ground that 
it is unjust or undesirable can be told to go back to the realm of morality 
he came from, since the law is the command of the sovereign and not a 
matter of moral theory. Perhaps the chief usefulness of the Blackstonian 
theory is the gag it places upon legal criticism. Obviously, if the law 
is something that commands what is right and prohibits what is wrong, 
it is impossible to argue about the goodness or badness of any law, and 
any definition that deters people from criticism of the law is very useful 
to legal apologists for the existing order of society. As a modern authority 
on legal reasoning declares, "Thus all things made legal are at the 
same time legally ethical because it is law, and the law must be deemed 
ethical or the system itself must perish." 77 

2. The Nature of Legal Rules and Concepts 

If the functionalists are correct, the meaning of a definition is found in 
its consequences. The definition of a general term like "law" is signifi- 
cant only because it affects all our definitions of specific legal concepts. 

The consequence of defining law as a function of concrete judicial 
decisions is that we may proceed to define such concepts as "contract," 
"property," "title," "corporate personality," "right," and "duty," simi- 
larly as functions of concrete judicial decisions.* 

The consequence of defining law as a hodge-podge of political force 
and ethical value ambiguously amalgamated is that every legal concept, 
rule, or question will present a similar ambiguity. 

Consider the elementary legal question: "Is there a contract?" 

When the realist asks this question, he is concerned with the actual 

77. Brumbaugh, Legal Reasoning and Briefing (1917), p. 7. 

* [Ed. note: In a later article, "The Problems of a Functional Jurisprudence/' the 
following references were given to this statement. See: M. R. Cohen, "Property and 
Sovereignty" in Law and the Social Order (1933), 41; R. L. Hale, "Coercion and 
Distribution in a Supposedly Noncoercive State" (1923), 38 Political Science Quarterly, 
470; R. L. Hale, "Rate Making and the Revision of the Property Concept" (1922), 
2* Columbia Law Review, 209; Llewellyn, Cases and Materials on the Law of Sales 
(1930); OHphant, "Mutuality of Obligation in Bilateral Contracts at Law" (1929), 25 
Columbia Law Review, 705; (1928), 28 Columbia Law Review, 997; Cook, "Logical 
and Legal Bases of the Conflict of Laws" (1924), 33 Yale Law Journal, 457.] 



behavior of courts. For the realist, the contractual relationship, like 
law in general, is a function of legal decisions. The question of what 
courts ought to do is irrelevant here. Where there is a promise that 
will be legally enforced there is a contract. So conceived, any answer 
to the question "Is there a contract" must be in the nature of a prophecy 
based, like other prophecies, upon past and present facts. So conceived, 
the question "Is there a contract?" or for that matter any other legal 
question, may be broken up into a number of subordinate questions, 
each of which refers to the actual behavior of courts: (i) What courts are 
likely to pass upon a given transaction and its consequences? (2) What 
elements in this transaction will be viewed as relevant and important 
by these courts? (3) How have these courts dealt with transactions in 
the past which are similar to the given transaction, that is, identical in 
those respects which the court will regard as important? (4) What forces 
will tend to compel judicial conformity to the precedents that appear to 
be in point (e.g. inertia, conservatism, knowledge of the past, or intelli- 
gence sufficient to acquire such knowledge, respect for predecessors, 
superiors, or brothers on the bench, a habit of deference to the estab- 
lished expectations of the bar or the public) and how strong are these 
forces? (5) What factors will tend to evoke new judicial treatment for 
the transaction in question (e.g. changing public opinion, judicial 
idiosyncrasies and prejudices, newly accepted theories of law, society or 
economics, or the changing social context of the case) and how powerful 
are these factors? 

These are the questions which a successful practical lawyer faces 
and answers in any case. The law, as the realistic lawyer uses the term, 
is the body of answers to such questions. The task of prediction in- 
volves, in itself, no judgment of ethical value. Of course, even the most 
cynical practitioner will recognize that the positively existing ethical 
beliefs of judges are material facts in any case because they determine 
what facts the judge will view as important and what past rules he 
will regard as reasonable or unreasonable and worthy of being extended 
or restricted. But judicial beliefs about the values of life and the ideals 
of society are facts, just as the religious beliefs of the Andaman Islanders 
are facts, and the truth or falsity o such moral beliefs is a matter of 
complete unconcern to the practical lawyer, as to the scientific observer. 

Washed in cynical acid,* every legal problem can thus be interpreted 
as a question concerning the positive behavior of judges. 

* [Ed. note: The reference is to " . . the vague circumference of the notion of 
duty shrinks and at the same time grows more precise when we wash it with cynical 
acid and expel everything except the object of our study, the operations of the law," 
Holmes, "The Path of the Law" (1897), Harvard Law Review, 457, 4$*.] 



There is a second and radically different meaning which can be 
given to our type question, "Is there a contract?" When a judge puts 
this question, in the course of writing his opinion, he is not attempting 
to predict his own behavior. He is in effect raising the question, in an 
obscure way, of whether or not liability should be attached to certain 
acts. This is inescapably an ethical question. What a judge ought to 
do in a given case is quite as much a moral issue as any of the traditional 
problems of Sunday School morality. 78 

It is difficult for those who still conceive of morality in other- 
worldly terms to recognize that every case presents a moral question 
to the court. But this notion has no terrors for those who think of 
morality in earthly terms. Morality, so conceived, is vitally concerned 
with such facts as human expectations based upon past decisions, the 
stability of economic transactions, and even the maintenance of order 
and simplicity in our legal system. If ethical values are inherent in all 
realms of human conduct, the ethical appraisal of a legal situation is 
not to be found in the spontaneous outpourings of a sensitive conscience 
unfamiliar with the social context, the background of precedent, and 
the practices and expectations, legal and extra-legal, which have grown 
up around a given type of transaction. 

It is the great disservice of the classical conception of law that it 
hides from judicial eyes the ethical character of every judicial question, 
and thus serves to perpetuate class prejudices and uncritical moral as- 
sumptions which could not survive the sunlight of free ethical con- 

The Blackstonian conception of law as half-mortal and half-divine 
gives us a mythical conception of contract. When a master of classical 
jurisprudence like Williston asks the question "Is there a contract?", he 
has in mind neither the question of scientific prediction which the prac- 
tical lawyer faces, nor the question of values which the conscientious 
judge faces. If he had in mind the former question, his studies would 
no doubt reveal the extent to which courts actually enforce various types 
of contractual obligation. 79 His conclusions would be in terms of prob- 
ability and statistics. On the other hand, if Professor Williston were 

78. Cf. F. S. Cohen, "Modern Ethics and the Law" [above, p. 17] on the conception 
of "Sunday School morality." 

79. So hallowed is the juristic tradition of ignoring the actual facts of cases that 
a distinguished jurist, Professor Goodhart, can argue in all seriousness that the practice 
adopted by some American law libraries of putting the records of cases on file is very 
dangerous. Students might be distracted from the official ratio deddendi of the case, 
and might try to discover what the actual facts of the case were, which would be a 
death-blow to traditional jurisprudence. See Goodhart, "Determining the Ratio 
Deddendi of a Case" (1930) 40 Yale LJ. 161, 172. 


interested in the ethical aspects of contractual liability, he would un- 
doubtedly offer a significant account of the human values and social 
costs involved in different types of agreements and in the means of their 
enforcement. In fact, however, the discussions of a Williston will 
oscillate between a theory of what courts actually do and a theory of 
what courts ought to do, without coming to rest either on the plane of 
social actualities or on the plane of values long enough to come to grips 
with significant problems. This confused wandering between the world 
of fact and the world of justice vitiates every argument and every 

Intellectual clarity requires that we carefully distinguish between the 
two problems of (i) objective description, and (2) critical judgment, 
which classical jurisprudence lumps under the same phrase. Such a dis- 
tinction realistic jurisprudence offers with the double-barreled thesis: 
(i) that every legal rule or concept is simply a function of judicial de- 
cisions to which all questions of value are irrelevant, and (2) that the 
problem of the judge is not whether a legal rule or concept actually ex- 
ists but whether it ought to exist. Clarity on two fronts is the result. 
Description of legal facts becomes more objective, and legal criticism 
becomes more critical. 

The realistic lawyer, when he attempts to discover how courts are 
actually dealing with certain situations, will seek to rise above his own 
moral bias and to discount the moral bias of the legal author whose 
treatise he consults. 

The realistic author of textbooks will not muddy his descriptions 
of judicial behavior with wishful thinking; if he dislikes a decision or 
line of decisions, he will refrain from saying, "This cannot be the law 
because it is contrary to sound principle," and say instead, "This is the 
law, but I don't like it," or more usefully, "This rule leads to the follow- 
ing results, which are socially undesirable for the following reasons . . ." 

The realistic advocate, if he continues to use ritual language in 
addressing an unrealistic court, will at least not be fooled by his own 
words: he will use his "patter" to induce favorable judicial attitudes 
and at the same time to distract judicial attention from precedents and 
facts that look the wrong way (as the professional magician uses his 
"patter" to distract the attention of his audience from certain facts). 
Recognizing the circularity of conceptual argument, the realistic ad- 
vocate will contrive to bring before the court the human values that 
favor his cause, and since the rules of evidence often stand in the way, 
he will perforce bring his materials to judicial attention by sleight-of- 
hand through the appeal of a "sociological brief' to "judicial notice/' 



through discussion of the background and consequences of past cases 
cited as precedents, through elaboration and exegesis upon admissible 
evidence, or even through a political speech or a lecture on economics 
in the summation of his case or argument. 

The realistic judge, finally, will not fool himself or anyone else by 
basing decisions upon circular reasoning from the presence or absence 
of corporations, conspiracies, property rights, titles, contracts, proximate 
causes, or other legal derivatives of the judicial decision itself. Rather, 
he will frankly assess the conflicting human values that are opposed 
in every controversy, appraise the social importance of the precedents 
to which each claim appeals, open the courtroom to all evidence that 
will bring light to this delicate practical task of social adjustment, and 
consign to Von Jhering's heaven of legal concepts all attorneys whose 
only skill is that of the conceptual acrobat. 

5. The Theory of Legal Decisions 

The uses of the functional approach are not exhausted by "realistic 
jurisprudence." "Realistic jurisprudence," as that term is currently 
used, 80 is a theory of the nature of law, and therefore a theory of the 
nature of legal rules, legal concepts, and legal questions. Its essence is 
the definition of law as a function of judicial decisions. This definition 
is of tremendous value in the development of legal science, since it 
enables us to dispel the supernatural mists that envelop the legal order 
and to deal with the elements of the legal order in objective, scientific 
terms. But this process of definition and clarification is only a pre- 
liminary stage in the life of legal science. When we have analyzed 
legal rules and concepts as patterns of decisions, it becomes relevant to 
ask, "What are judicial decisions made of?" 

If we conceive of legal rules and concepts as functions of judicial 
decisions, it is convenient, for purposes of this analysis, to think of these 
decisions as hard and simple facts. Just as every physical object may be 
analyzed as a complex of positive and negative electrons, so every legal 
institution, every legal rule or concept may be analyzed as a complex 
of plaintiff decisions and defendant decisions. But simplicity is relative 
to the level of analysis. For the chemist, the atom is the lowest term 
of analysis. But the physicist cannot stop the process of analysis with 

80. See K. N. Llewellyn, "A Realistic Jurisprudence The Next Step" (1930) 30 
Columbia Law Rev. 431; Pound, "The Call for a Realist Jurisprudence" (1931) 44 
Han;. L. Rev. 697; Llewellyn, "Some Realism about Realism: Responding to Dean 
Pound" (1931) 44 Harv. L* Rev. 1222. 



the atom or even the electron. It would be heresy to the faith of science 
to endow either with final simplicity and perpetual immunity from 
further analysis. Unfortunately, certain advocates of realistic jurispru- 
dence, after using the functional method to break down rules and con- 
cepts into atomic decisions, refuse to go any further with the analytic 
process. They are willing to look upon decisions as simple unanalyzable 
products of judicial hunches or indigestion. 

The ''hunch" theory of law, 81 by magnifying the personal and ac- 
cidental factors in judicial behavior, implicitly denies the relevance of 
significant, predictable, social determinants that govern the course of 
judicial decision. Those who have advanced this viewpoint have per- 
formed a real service in indicating the large realm of uncertainty in the 
actual law. But actual experience does reveal a significant body of pre- 
dictable uniformity in the behavior of courts. Law is not a mass of 
unrelated decisions nor a product of judicial bellyaches. Judges are 
human, but they are a peculiar breed of humans, selected to a type and 
held to service under a potent system of governmental controls. Their 
acts are "judicial" only within a system which provides for appeals, re- 
hearings, impeachments, and legislation. The decision that is "peculiar" 
suffers erosion unless it represents the first salient manifestation of 
a new social force, in which case it soon ceases to be peculiar. It is 
more useful to analyze a judicial "hunch" in terms of the continued im- 
pact of a judge's study of precedents, his conversations with associates, 
his reading of newspapers, and his recollections of college courses, than 
in strictly physiological terms. 

A truly realistic theory of judicial decisions must conceive every 
decision as something more than an expression of individual person- 
ality, as concomitantly and even more importantly a function of social 
forces, that is to say, as a product of social determinants and an index 
of social consequences. A judicial decision is a social event. Like the 
enactment of a Federal statute, or the equipping of police cars with 
radios, a judicial decision is an intersection of social forces: Behind 
the decision are social forces that play upon it to give it a resultant mo- 
mentum and direction; beyond the decision are human activities affected 
by it. The decision is without significant social dimensions when it is 

81* See Hutcheson, 'The Judgment Intuitive; The Function oC the 'Hunch 1 iu 
Judicial Decisions" (1929) 14 Corn. L,. 274; Hutcheson, "Lawyer's Law and thf 
Little, Small Dice" (1932) 7 Tulane . Rev. j; Frank, Law and the Modern Mind 
(1930)', c 12-13; T, Schroeder, "The Psychologic Study of Judicial Opinions'* (1918) 
6 Calif, L. Rev. 89, 



viewed simply at the moment in which it is rendered. Only by probing 
behind the decision to the forces which it reflects, or projecting beyond 
the decision the lines of its force upon the future, do we come to an 
understanding of the meaning of the decision itself. The distinction 
between "holding" and "dictum" in any decision is not to be discovered 
by logical inspection of the opinion or by historical inquiry into the 
actual facts of the case. 82 That distinction involves us in a prediction, 
a prophecy of the weight that courts will give to future citations of the 
decision rendered. This is a question not of pure logic but of human 
psychology, economics, and politics. 

What is the meaning of a judicial decision, summed up in the words, 
"Judgment for the plaintiff"? Obviously, the significance of the de- 
cision, even for the parties directly involved in the case, depends upon 
certain predictable uniformities of official behavior, e.g. that a sheriff 
or marshal will enforce the decision, in one way or another, over a 
period of time, that the given decision will be respected or followed in 
the same court or other courts if the question at issue is relitigated, and 
that certain procedures will be followed in the event of an appeal, etc. 
When we go beyond the merely private significance of an actual de- 
cision, we are involved in a new set of predictions concerning the extent 
to which other cases, similar in certain respects, are likely to receive the 
same treatment in the same courts or in other courts within a given 
jurisdiction. Except in the context of such predictions the announce- 
ment of a judicial decision is only a noise. If reasonably certain pre- 
dictions of this sort could never be made, as Jerome Frank at times 
seems to say, 83 then all legal decisions would be simply noises, and no 
better grist for science than the magical phrases of transcendental juris- 

If the understanding of any decision involves us necessarily in prophecy 
(and thus in history), then the notion of law as something that exists 
completely and systematically at any given moment in time is false. 84 

82, Compare the orthodox wild goose chase of Goodhart after a formula which 
will determine the "real" ratio decidendi of a case (Goodhart, "Determining the 
Ratio Decidendi of a Case" (1930) 40 Yale LJ. 161) with sane description by 
Llewellyn of the way in which cases come to stand for propositions of narrow or wide 
scope. The Bramble Bush (1930), pp. 47, 61-66. Cf. also Oliphant, "A Return to Stare 
Decisis" (1928) 6 Am. L. School Rev. 215, 217-18; F. S. Cohen, Ethical Systems and 
Legal Ideals (1933), pp. 33~37- 

83, See Frank, Law and the Modern Mind (1930), pp. 7, 53, 104-11, 132-34- 

84, In this, law is no different from other social institutions or physical objects. 
Cf. C. I. Lewis, op. cit, supra note 48, c. 5. 


Law is a social process, a complex of human activities, and an adequate 
legal science must deal with human activity, with cause and effect, with 
the past and the future. Legal science, as traditionally conceived, at- 
tempts to give an instantaneous snapshot of an existing and completed 
system of rights and duties. Within that system there are no temporal 
processes, no cause and no effect, no past and no future. A legal de- 
cision is thus conceived as a logical deduction from fixed principles. 
Its meaning is expressed only in terms of its logical consequences. A 
legal system, thus viewed, is as far removed from temporal activity as a 
system of pure geometry. In fact, jurisprudence is as much a part of 
pure mathematics as is algebra, unless it be conceived as a study of 
human behavior human behavior as it molds and is molded by judicial 
decisions. Legal systems, principles, rules, institutions, concepts, and 
decisions can be understood only as functions of human behavior. 85 

Such a view of legal science reveals gaps in our legal knowledge 
to which, I think, legal research will give increasing attention. 

We are still in the stage of guesswork and accidentally collected in- 
formation, when it comes to formulating the social forces which mold 
the course of judicial decision. We know, in a general way, that domi- 
nant economic forces play a part in judicial decision, that judges usually 
reflect the attitudes of their own income class on social questions, that 
their views on law are molded to a certain extent by their past legal 
experience as counsel for special interests, and that the impact of coun- 
sel's skill and eloquence is a cumulative force which slowly hammers 
the law into forms desired by those who can best afford to hire legal 
skill and eloquence; but nobody has ever charted, in scientific fashion, 
the extent of such economic influences. 86 We know, too, that judges are 
craftsmen, with aesthetic ideals, 87 concerned with the aesthetic judgments 

85. "To say that a legal institution, private property, the federal government of 
the United States, Columbia University, exists is to say that a group of persons 
is doing something, is acting in some way. It is to point to a particular aspect of 
human behavior. . . . But a legal institution is something more than the way men 
act on a single occasion. ... A legal institution is the happening over and over 
again of the same kind of behavior/' U. Moore, op. cit. supra note 33, 

86. Promising first steps towards such a study have been taken in: Brooks Adams, 
op. cit. supra note 32; Gustavus Myers, History of the Supreme Court (1912); Boudin, 
op. cit. supra note 2*7 (1932); Walter Nelles, "Commonwealth v. Hunt" (1932) 32 
Columbia Law Rev. 1128; Nelles, "The First American Labor Case" (193 1) 41 Yale 
LJ. 165; Max Lerner, "The Supreme Court and American Capitalism" (1933) 48 
Yale LJ. 668; W. Hamilton, "Judicial Tolerance of Farmers' Cooperatives" (1929) 
38 Yale LJ, 936; articles of Haines, Brown and Cushman cited supra note 38, 

87. Cf. F. S. Cohen, Ethical Systems and Legal Ideals (1933)* pp* 6-61; "Modern 
Ethics and the Law" [above, pp. 17, 30-32]. 



that the bar and the law schools will pass upon their awkward or skill- 
ful, harmonious or unharmonious, anomalous or satisfying, actions and 
theories; but again we have no specific information on the extent of 
this aesthetic bias in the various branches of the law. We know that 
courts are, at least in this country, a generally conservative social force, 
and more like a brake than a motor in the social mechanism, but we 
have no scientific factual comparison of judicial, legislative, and execu- 
tive organs of government, from the standpoint of social engineering. 
Concretely and specifically, we know that Judge So-and-so, a former 
attorney for a non-union shop, has very definite ideas about labor in- 
junctions, that another judge, who has had an unfortunate sex life, is 
parsimonious in the fixing of alimony; that another judge can be 
"fixed" by a certain political "boss"; that a series of notorious kidnap- 
pings will bring about a wave of maximum sentences in kidnapping 
cases. All this knowledge is useful to the practicing lawyer, to the public 
official, to the social reformer, and to the disinterested student of society. 
But it is most meager, and what little of it we have, individually, is not 
collectively available. There is at present no publication showing the 
political, economic, and professional background and activities of our 
various judges. Such a reference work would be exceedingly valuable, not 
only to the practical lawyer who wants to bring a motion or try a case 
before a sympathetic court, but also to the disinterested student of the 
law. Such a Judicial Index is not published, however, because it would 
be disrespectable. 88 According to the classical theory, these things have 
nothing to do with the way courts decide cases. A witty critic of the 
functional approach regards it as a reductio ad absurdum of this ap- 
proach that law schools of the future may investigate judicial psychology, 
teach the art of bribery, and produce graduate detectives. 89 This is far 
from a reductio ad absurdum. Our understanding of the law will be 
greatly enriched when we learn more about how judges think, about 
the exact extent of judicial corruption, and about the techniques for 
investigating legally relevant facts. Of course, this knowledge may be used 
for improper purposes, but cannot the same be said of the knowledge 
which traditional legal education distributes? 

If we know little today of the motivating forces which mold legal 
decisions, we know even less of the human consequences of these de- 
cisions. We do not even know how far the appellate cases, with which 

88. Frank reports (law and the Modern Mind, pp. 112-15) the discontinuance of 
a statistical study of the decisions of various New York magistrates which revealed 
startling differences in the treatment of certain offenses. 

89. Kantorowicz, "Some Rationalism about Realism" (1934) 43 



legal treatises are almost exclusively concerned, are actually followed 
in the trial courts. 90 Here, again, the experienced practitioner is likely 
to have accumulated a good deal of empirical information, but the young 
law clerk, just out of a first-rate law school, is not even aware that such 
a problem exists. Likewise, the problem of the actual enforcement of 
judgments has received almost no critical study. Discussion of the extent 
to which various statutes are actually enforced regularly moves in the 
thin air of polemic theory. It is usually practically impossible to find 
out whether a given statute has ever been enforced unless its enforce- 
ment has raised a legal tangle for appellate courts. 

When we advance beyond the realm of official conduct and seek to 
discover the social consequences of particular statutes or decisions, we 
find a few promising programs of research 91 but almost no factual 
studies.** 2 Today the inclusion of factual annotations in a code, show- 
ing the extent and effects of law enforcement, would strike most lawyers 
as almost obscene. But notions of obscenity change, and every significant 
intellectual revolution raises to prominence facts once obscure and 
disrespectable. It is reasonable to expect that some day even the im- 
pudencies of Holmes and Llewellyn will appear sage and respectable. 

4. Legal Criticism 

It is perhaps the chief service of the functional approach that in 
cleansing legal rules, concepts, and institutions of the compulsive flavors 

90. The Institute of Law of Johns Hopkins broke the ice in the modern study of 
trial court decisions. See Study of Civil Justice in New York (1931). See also Marshall, 
Study of Judicial System of Maryland (1932); C. E. Clark, "Fact Research in Law 
Administration" (1928) 2 Conn. Bar J. 211; B, L, Shientag and F. S, Cohen, "Summary 
Judgments in the Supreme Court of New York" (1932) 32 Columbia Law Rev. 825, and 
works cited therein, notes 6 and 7; Saxe, "Summary Judgments in New York A 
Statistical Study" (1934) 19 Corn. .Q. 237; B. L. Shientag, "Summary Judgment" 
(1935) 4 Fordham L. Rev, 186. 

91. See, for example, Pound, "The Scope and Purpose of Sociological Jurisprudence" 
(1911-1912) 24 Harv. L. Rev. 591, 25 id. 140, 489; F, K. Beutel, "Some Implications of 
Experimental Jurisprudence" (1934) 48 Harv. L. Rev. 169, 191-94. 

92. Notable exceptions are: McCracken, Strike Injunctions in the New South (1931); 
Brissenden and Swayzee, "The Use of the Labor Injunction in the New York Needle 
Trades" (1929) 44 Pol. Sci. Q. 548, (1930) 45 id. 87. In addition to these direct studies 
of the effects of legal rules or decisions, there is a growing literature on the social 
materials with which law is concerned. Examples of such work are: Pound and Frank- 
furter, Criminal Justice in Cleveland (1922); R, R, Powell and Looker, "Decedents' 
Estates: Illumination from Probate and Tax Records" (1930) 30 Columbia Law Rev. 
919; Smith, Lilly and Bowling, "Compensation for Automobile Accidents; A Sym- 
posium" (1932) 32 Columbia Law Rev. 785; S. and E. T, Glueck, "Predictability in the 
Administration of Criminal Justice" (1939) 42 Harv. L. Rev. 297. 



of legal logic or metaphysics, room is made for conscious ethical criti- 
cism of law. In traditional jurisprudence, criticism, where it exists, is 
found masked in the protective camouflage of transcendental nonsense: 
"The law must (or cannot) be thus and so, because the nature of con- 
tracts, corporations, or contingent remainders so requires." The func- 
tional approach permits ethics to come out of hiding. When we recog- 
nize that legal rules are simply formulae describing uniformities of 
judicial decision, that legal concepts likewise are patterns or functions 
of judicial decisions, that decisions themselves are not products of 
logical parthenogenesis born of pre-existing legal principles but are 
social events with social causes and consequences, then we are ready 
for the serious business of appraising law and legal institutions in terms 
of some standard of human values. 

The importance for legal criticism of clear, objective description of 
judicial behavior, its causes and its consequences, is coming to be gen- 
erally recognized. What is not so easily recognized is the importance for 
objective legal science of legal criticism. 

Since the brilliant achievements of Bentham, descriptive legal science 
has made almost no progress in determining the consequences of legal 
rules. 93 This failure of scholarship, in the light of the encouraging 
progress of modern research into the antecedents and social context of 
judicial decision, calls for explanation. 

Possibly this gap is to be explained in terms of an inherited as- 
sumption that statutes and decisions are self-executing, that the con- 
sequences of a law or a judgment are, therefore, clearly indicated by 
the language of the statute or decision itself, and that factual research 
is therefore a work of supererogation. Possibly this failure of research 
is to be explained in terms of the dominance of the private lawyer 
in our legal education. The private attorney is interested in the causes 
of judicial decisions, but his interest in consequences is likely to stop 
with the payment of a fee, I am inclined to think, however, that the 
failure of our legal scholarship in this direction may be attributed to 
a more fundamental difficulty. The prospect of determining the conse- 
quences of a given rule of law appears to be an infinite task, and is in- 
deed an infinite task unless we approach it with some discriminating 

93. The following spiritual exercise is recommended by Professor Kantorowicz. Let 
the unconverted lawyer or law student read a code of laws in the following way: 
"Let him ask himself with respect to each statement , . . what harms would social 
life undergo if instead of this statement the opposite were enacted. And then let him 
turn to all textbooks, commentaries, monographs and reports of decisions and see how 
many questions of this sort he will find answered and how many he will find even 
put." Rechtswissenschaft und Sociologist (1911) 8, quoted in Pound, supra note 91, 25 
Harv. L. Rev. 489, 513, 


criterion of what consequences are important. Now a criterion of im- 
portance presupposes a criterion of values, which is precisely what 
modern thinkers of the "sociological" and "realistic" schools of juris- 
prudence have never had. Dean Pound has talked for many years of the 
"balancing" of interests, but without ever indicating which interests are 
more important than others or how a standard of weight or fineness 
can be constructed for the appraisal of "interests." 94 Contemporary 
"realists" have, in general, either denied absolutely that absolute stand- 
ards of importance can exist, 95 or else insisted that we must thoroughly 
understand the facts as they are before we begin to evaluate them. Such 
a postponement of the problem of values is equivalent to its repudiation. 
We never shall thoroughly understand the facts as they are, and we are 
not likely to make much progress towards such understanding unless 
we at the same time bring into play a critical theory of values. In terms 
of such a theory, particular human desires and habits are important, and 
the task of research into legal consequences passes from the realm of 
vague curiosity to the problem form: How do these rules of law 
strengthen or change these important habits and satisfy or impede these 
important desires? 

The positive task of descriptive legal science cannot, therefore, be 
entirely separated from the task of legal criticism. The collection of 
social facts without a selective criterion of human values produces a 
horrid wilderness of useless statistics. 06 The relation between positive legal 
science and legal criticism is not a relation of temporal priority, but 
of mutual dependence. 97 Legal criticism is empty without objective de- 
scription of the causes and consequences of legal decisions. Legal descrip- 
tion is blind without the guiding light of a theory of values, It is through 
the union of objective legal science and a critical theory of social values 
that our understanding of the human significance of law will be en- 
riched. It is loyalty to this union of distinct disciplines that will mark 
whatever is of lasting importance in contemporary legal science and 
legal philosophy. 

94. Cf. W. L. Grossman, "The Legal Philosophy of Roscoe Pound*' (1935) 44 Yale 
LJ. 605, 608-11; John C. H. Wu, "The Juristic Philosophy of Roscoe Pound" (1924) 
18 HL Law Rev. 285, 294-304. 

95. See U. Moore, op. cit. supra note 32, 609, 612; W. Nelles, Book Review (1953) 33 
Columbia Law Rev. 763, 765-768. 

96. See Pound, "The Call for a Realist Jurisprudence" (1931) 44 Haw* ,* Rev, 
697, 701. 

97. I have attempted to trace these relations in some detail in Ethical Systems and 
Legal Ideals (1933) and again, more briefly and in words of one and two syllables, m 
"Modern Ethics and the Law" (above, p. 17], 

The Problems of a Functional Jurisprudence 

IN THE lists of jurisprudence, the champion of a new theory is generally 
expected to prove the virtue of the lady for whom he fights by splitting 
the skulls of those who champion other ladies. Yet despite the struggle 
of schools that has been waged for the last forty years in our law reviews, 1 
it is possible, I think, to defend the functional approach in jurispru- 
dence without attacking the doctrines or the achievements of any other 

In jurisprudence as in other fields of thought, we are more likely to 
reach a just appraisal of a new school by asking not, "What thesis does 
it defend?" but rather, "What question does it put?" The most significant 
advances in intellectual history are characterized by the focusing of 
critical attention upon facts and issues which were formerly considered 
unimportant, indecent, or self-evident. 

Modern physics begins when Galileo and his fellow workers first 
formulate such problems as, "How fast does a falling body fall?" Galileo 
is distinguished from his predecessors not because they differed in their 

i. See Holmes, "The Path of the Law" (1897), 10 Harvard Law Review 457, Collected 
Legal Papers (1920), p, 167; Pound, "Law in Books and Law in Action" (1910), 44 
American Law Review 12; Pound, "Mechanical Jurisprudence*' (1908), 8 Columbia 
Law Review 605; M. R. Cohen, "The Process of Judicial Legislation" (1914), 48 
American Law Review 161; Law and the Social Order (1933), p. 112; Cook, "Logical 
and Legal Bases of the Conflict of Laws" (1924), 33 Yale Law Journal 457; Oliphant, 
"A Return to Stare Decisis" (1928), 6 American Law School Review 215; Llewellyn, 
"A Realistic Jurisprudence -The Next Step" (1930), 30 Columbia Law Review 431; 
Pound, "The Call for a Realist Jurisprudence" (1931), 44 Harvard Law Review 697; 
Llewellyn, "Some Realism about Realism Responding to Dean Pound" (1931), 44 
Harvard Law Review; Kantorowicz, "Some Rationalism about Realism" (1934), 43 
Yale Law Journal 1240; John C. H. Wu, "Realistic Analysis of Legal Concepts: A 
Study in the Legal Method of Mr. Justice Holmes" (1932), 5 China Law Review i, 2; 
Yntema, "The Rational Basis of Legal Science" (1931), 31 Columbia Law Review 925; 
M. R. Cohen, "Philosophy and Legal Science" (1932), 32 Columbia Law Review 1103, 
Law and the Social Order (1933), p. 219; F. S. Cohen, "Transcendental Nonsense and 
the Functional Approach" [above, p. 33]. 

Published in Modern Law Review (London), 1937. 



answers to such questions, but rather because Galileo thought such 
questions were worth answering while earlier "natural philosophers" had 
considered such questions trivial as compared with theological or 
ideological questions concerning "perfect motion" and the "proper 
place" of things in the world-scheme. 

The remarkable intellectual advance achieved during the past century 
in formal logic is very largely based upon the initiative of such mathe- 
maticians as Lobachewsky and Riemann, who, challenging the "self- 
evidence" of Euclid's parallel postulate, asked: "What consequences will 
follow from geometric assumptions other than those of Euclid?" The 
result of such investigations was not to "disprove" Euclidean geometry, 
but rather to show it in its true perspective as one logical system within 
a matrix of systems, all of which have possible applications to the actual 

If history-writing is on a more realistic plane today than it was a 
century ago, this is certainly due very largely to the work of Karl Marx. 
Non-socialist historians may reject entirely the thesis of the class strug- 
gle, and even the general doctrine of social evolution, but they cannot 
reject or forget the insistent questions that Marx put, "How is this or 
that event related to the system of production and distribution that 
prevails at the time and place?" Certainly the persistent reiteration of 
this question in fields of social organization, politics, morality, and law 
is the first characteristic that distinguishes modern history-writing from 
the pre-Marxian histories that ascribe most historical events to the char- 
acter of the sovereign, the fortunes of warfare, or the spirit of peoples. 

Similarly it might be shown that in fields of biology, economics, 
psychology, and philosophy, to mention no others, the enduring contri- 
butions of new schools of thought have been not the new theories they 
have defended, which have more often than not turned out to be 
erroneous, but the new questions they have put. 

Let us then survey the role of functionalism in legal science not as 
a refutation of past theories of law nor even as an improvement in our 
present methods of legal research, but rather as an insistence on certain 
questions that until recently have been generally ignored in legal studies. 
Specifically, the functional method poses such questions as: How do rules 
of law work? Are certain rules of law, so-called, merely ritual observances 
which have no verifiable relation to the decisions of judges who recite 
them? To what extent are laws actually obeyed? What are the limits of 
effective law enforcement? What are the social mechanisms and institu- 
tions that make certain rules of law effective and leave others dead 



letters? When rules of law are obeyed or disobeyed, what consequences 
actually follow from such conduct? 

More generally, these questions may be compressed in the formula, 
"What is the human meaning of the law?" This is a very different ques- 
tion from the question, "How has law developed?" which historical 
jurists have asked and answered. It is very different from the question, 
"What is the nature or structure of law?" with which analytical jurists 
have been concerned. It is very different from the question, "What is the 
purpose of law?" which writers on justice and natural rights have pressed. 

Precisely because it is a very different question from these questions 
that have occupied so large a part of traditional jurisprudence, the 
question of the human significance of law must be posed as a supple- 
ment to establish lines of inquiry in legal science rather than as a sub- 
stitute for them. Indeed, there is an intimate and mutual interdepend- 
ence among these lines of inquiry, historical, analytical, ethical, and 

The law of the present is a tenuous abstraction hovering between 
legal history and legal prophecy. The functionalist cannot describe the 
present significance of any rule of law without reference to historical 
elements. It is equally true that the historical jurist cannot reconstruct 
the past unless he grasps the meaning of the present. 

The functionalist must have recourse to the logical instruments that 
analytical jurisprudence furnishes. Analytical jurisprudence, in turn, may 
develop more fruitful modes of analysis with a better understanding of 
the law-in-action. 

Functional description of the workings of a legal rule will be indis- 
pensable to one who seeks to pass ethical judgments on law. The func- 
tionalist, however, is likely to be lost in an infinite maze of trivialities 
unless he is able to concentrate on the important consequences of a 
legal rule and ignore the unimportant consequences, a distinction which 
can be made only in terms of an ethical theory. 

Recognizing then, that functional jurisprudence is not a new set 
of answers to the traditional problems of jurisprudence, nor even a 
new method of getting such answers, but rather a new set of problems, 
let us examine the issues which are thus brought to the forefront of legal 
consciousness. In general, these issues may be considered under two 
headings: the analysis of law as a function of judicial behavior; and 
the appraisal of law as a determinant of human behavior. 

Functionalism, as a philosophy, may be defined as the view that a 
thing does not have a "nature" or "essence" or "reality" underlying its 



manifestations and effects and apart from its relations with other things; 
that the nature, essence, or reality of a thing is its manifestations, its 
effects, and its relations with other things; and that, apart from these, 
"it" is nothing, or at most a point in logical space, a possibility of some- 
thing happening. To defend this philosophical viewpoint, 2 or even to 
canvas the applications of this viewpoint in modern science 3 would take 
us beyond the assigned limits of this paper. We shall concern ourselves 
not with the truth or falsity of a doctrine but with the significance of 
functionalism as a methodologic principle. Functionalism as a method 
may be summed up in the directive: If you want to understand some- 
thing, observe it in action. 

Applied within the field of law itself, this approach leads to a defini- 
tion of legal concepts, rules, and institutions in terms of judicial de- 
cisions or other acts of state-force. Whatever cannot be so translated is 
functionally meaningless. 4 Applied to the larger field of general human 
behavior, this same approach leads to an appraisal of law in terms of 

2. The viewpoint is something common to logical positivism, pragmatism, opera - 
tionalism, and Whitehead's "method of extensive abstraction." See C. S. Peirce, Chance, 
Love and Logic (1923); Collected Papers (1931-34), especially vol. 5; James, Pragmatism 
(1908); Essays in Radical Empiricism (1912); Dewey, "Appearing and Appearance," in 
Philosophy and Civilization (1931), p. 51; Russell, Our Knowledge of the External 
World as a Field for Scientific Method in Philosophy (1914); Mysticism and Logic 
(1918); Whitehead, The Principles of Natural Knowledge (1919); The Concept of 
Nature (1920); C. I. Lewis, Mind and the World-Order (1929); C. 0, Broad, Scientific 
Thought (1923); Wittgenstein, Tractatus Logico-Philosophicus (1922); Carnap, "Ueber- 
windung der Metaphysik durch logische Analyse der Sprache" (1932), 2 Erkenntnis, 
No. 4; J. E. Boodin, "Functional Realism" (1934), 43 Philosophical Review 147. 

3. See, for applications of a similar approach 

In mathematics: Russell, Introduction to Mathematical Philosophy (1919). 

In psychology: W. James, Essays in Radical Empiricism (1912). 

In religion: Max Weber, The Protestant Ethic and the Spirit of Capitalism t trans, 
by Parsons (1930); R. H, Tawney, Religion and the Rise of Capitalism (1926); James, 
The Varieties of Religious Experience (1902); Kaplan, Judaism as a Civilisation (1934), 
c, 26 ("Functional Method of Interpretation"). 

In anthropology: Boas, Primitive Art (1927); Boas, "The Social Organization and the 
Secret Societies of the Kwakiutl Indians" (1895), Report of United States National 
Museum, p. 315; Malinowskl, The Family among the Australian Aborigines (1915); 
Lowie, Primitive Society (1920); Golden weiser, History, Psychology and Culture 09SS) 
Part III (Totemism); Malinowski, Crime and Custom in Savage Society (1986); Hogbin, 
Law and Order in Polynesia (1934). 

In political science: W. J. Shephard, "Democracy in Transition" (1935), *9 American 
Political Science Review i; cf. H, J. Laski, Grammar of Politics (and edition, 1989); 
W. Y. Elliott, The Pragmatic Revolt in Politics (1928)* 

4. Cf. F. S. Cohen, "Transcendental Nonsense and the Functional Approach" [above, 
P- 33]- 



conduct of human beings who are affected by law. In the former field, the 
outcome of the functional approach is generally designated as "realistic 
jurisprudence." In the latter field, the outcome of the functional ap- 
proach is usually called "sociological jurisprudence." There is, however, 
no well-recognized definition of these schools of thought, 5 and I think 
it is fair to say that "realistic" and "sociological" jurisprudence are in 
part complementary and in part overlapping, but in no way antithetical, 
and that both spring from a common skeptical, scientific, anti-super- 
natural, functional outlook. 


Perhaps one reason why jurisprudence has been so slow in discovering 
the social content of legal rules and legal concepts is that jural facts, 
unlike the facts of physics or biology, generally purport to be self- 
explanatory. It has generally been considered an impertinence verging 
on political blasphemy to question the adequacy of these explanations. 
The statute carries on its face its intended effects; the decision of a court, 
if important, is generally accompanied by a rationale in the form of a 
judicial opinion; most of the acts of subordinate legal officials are sur- 
rounded by explanatory words and ritual. To take these explanations 
at their face value is at once a mark of political decorum and a release 
from arduous tasks of research. 

The trends of modern jurisprudence that we call functional are 
inaugurated by skeptics who refuse to take these explanations at their 
face value and demand hard coin of social fact in place of paper 
legalities. Some of these skeptics have suggested that the words of a 
statute often have only the most superficial resemblance to the work- 
ings of the statute. A good deal of statute law turns out under investiga- 
tion to be without any force law-in-books rather than law-in-action; 
other parts of the statute law have been given new meanings in judicial, 
administrative, and popular construction meanings that could never 
have been deduced from the words of the legislature. In either case, 
study of the statutes fails to provide a realistic picture of functioning 
law. Again, this skeptical spirit has been applied to the official dis- 
courses in which judges set forth the reasons for their decisions. Judicial 

5. There is a good deal of overlapping, for instance, in the program of sociological 
jurisprudence offered by Dean Pound, and the program of realistic jurisprudence 
outlined by Llewellyn. Cf. Pound, "Scope and Purpose of Sociological Jurisprudence" 
(1912), 25 Harvard Law Review 489, 512-15; and Llewellyn, "Some Realism about 
Realism Responding to Dean Pound'* (1931), 44 Harvard Law Review 1222, 1236-55. 



opinions have been viewed as no more and no less reliable than the 
statements in which octogenarians, golf champions, or successful bank- 
ers explain their achievements. In place of judicial introspection, or at 
least as a corrective for its deficiencies, we are invited to examine un- 
mentioned factors leading to a given decision. These factors may range 
from weakness of intellect or digestive disturbances to political beliefs 
or economic backgrounds. 

Under this skeptical gaze, a good many of the revered rules and 
principles of the law turn out to be pious frauds, contradicted by the 
actual holdings in decided cases, others turn out to be so ambiguous 
that they have no predictive or scientific value, and still others turn out 
to be disguised tautologies. 

The actual course of judicial decisions, conceived as a field of historical 
events rather than as a branch of geometry, reveals a much larger degree 
of uncertainty in the law than traditional jurisprudence has recognized. 
One of the most learned of living judges confesses to 

a mounting sense of wonder that with all our centuries of common 
law development, with all our multitudinous courts, and still more 
multitudinous decisions, there are so many questions, elementary in 
the sense of being primary and basic, that remain unsettled even 
now. . . . One wonders how one has attained maturity without 
getting oneself in trouble when one has been so uncertain all along 
of the things that one might do in affairs of primary concern. Take 
such fundamental privileges or claims of privilege as these the 
privilege to employ force against another who threatens one with 
bodily harm; the privilege to employ force to effect a recaption of 
chattels taken from one's custody; the privilege to employ force to 
effect an entry upon land. It is astonishing how obscure and con- 
fused are the pronouncements upon these fundamental claims of 
right. 6 

The extent of actual uncertainty in the body of the law is obscured 
by the legal fiction that courts do not make law but merely declare the 
law that already exists. 7 It is further obscured by linguistic conventions 
that give the appearance of certainty where there is no certainty. "Law- 
yers use what the layman describes as 'weasel words/ so-called 'safety- 

6. Cardozo, Paradoxes of Legal Science (1927), pp. 76-77, 

7, "The fiction that judges do not legislate has long since been abandoned by all 
who care for a conscious and realistic jurisprudence." H, J, Laski, "Judicial Review 
of Social Policy in England, A Study of Roberts v. Hopwood et al" (1926), 59 Harvard 
Law Review 83*. Cf. M. R. Cohen, *The Process of Judicial Legislation/' supra, note t, 



valve concepts/ such as 'prudent/ 'negligence/ 'freedom of contract/ 
'good faith/ 'ought to know/ 'due care/ 'due process/ terms with the 
vaguest meaning as if these vague words had a precise and clear defi- 
nition; they thereby create an appearance of continuity, uniformity and 
defmiteness which does not in fact exist." 8 Again the appearance of 
certainty is served by the verbal convention that established principles 
of law are never "refuted" but only "distinguished." Legal principles 
have a habit of running in pairs, a plaintiff principle and a defendant 
principle. 9 As in the domain of popular proverbs one appeals with 
equanimity to the caution, "Look before you leap/' or to its opposite, 
"He who hesitates is lost/' depending upon which course of action he 
prefers, so in the law one generally has a choice between opposite 
"principles." Writers of legal treatises have no compunction about setting 
the two principles side by side, with only a "but" or "however" between 
them for the sake of decency. But in the actual decision of cases the 
choice between conflicting principles is likely to depend on unstated 
considerations. Mr. Justice Holmes was one of the first to take judicial 
notice of the inconclusiveness of legal principles. 

The language of judicial decision is mainly the language of logic. 
And the logical method and form flatter that longing for certainty 
and for repose which is in every human mind. But certainty gen- 
erally is illusion, and repose is not the destiny of man. Behind 
the logical form lies a judgment as to the relative worth and im- 
portance of competing legislative grounds, often an inarticulate and 
unconscious judgment, it is true, and yet the very root and nerve 
of the whole proceeding. You can give any conclusion a logical form. 
You always can imply a condition in a contract. But why do you 
imply it? It is because of some belief as to the practice of the 
community, or of a class, or because of some opinion as to policy, 
or, in short, because of some attitude of yours upon a matter not 
capable of exact quantitative measurement, and therefore not capable 
of founding exact logical conclusions. . . . 

I think that the judges themselves have failed adequately to rec- 
ognize their duty of weighing considerations of social advantage. The 
duty is inevitable, and the result of the often proclaimed judicial 
aversion to deal with such considerations is simply to leave the very 
ground and foundation o judgments inarticulate, and often un- 

8. Jerome Frank, Law and the Modern Mind (1930), p. 27. 

9. Ynteraa, "The Hornbook Method and the Conflict of Laws" (1928), 37 Vale Law 
Journal 468. 



conscious, as I have said. When socialism first began to be talked 
about, the comfortable classes of the community were a good deal 
frightened. I suspect that this fear has influenced judicial action both 
here and in England, yet it is certain that it is not a conscious factor 
in the decisions to which I refer. ... I cannot but believe that if 
the training of lawyers led them habitually to consider more def- 
initely and explicitly the social advantage on which the rule they 
lay down must be justified, they sometimes would hesitate where 
now they are confident, and see that they were taking sides upon 
debatable and often burning questions. 10 

To recognize this element of choice in the judicial process is to make 
the study of social factors that determine the course of judicial decision 
an essential part of the lawyer's outfitting if he is to predict with accuracy 
the probable legal course of his client's plans. To quote from Mr. Justice 
Cardozo's revealing study of the judicial process: "The spirit of the age, 
as it is revealed to each of us, is too often only the spirit of the group in 
which the accidents of birth or education or occupation or fellowship 
have given us a place. No effort or revolution of the mind will overthrow 
utterly and at all times the empires of these subconscious loyalties." u 

Professor Laski has recently observed, in somewhat the same vein: 

... no true science of law is possible unless its assumptions arc 
built on a philosophy of history that enables us to predict the large 
consequences of the system in which we are involved. 

. , . Once we realize that the legal relations of society are, broadly 
speaking, the expressions of class relations, once we recognize in the 
state supreme coercive power held at the disposal of those who own 
the instruments of production, the processes of law begin to clarify 
themselves in a fundamental way. 12 

Undoubtedly Professor Laski and Justice Cardozo would differ pro- 
foundly in analyzing the social determinants of law. What is significant is 
that, despite these differences of social viewpoint, there is agreement on 
the direction of research required if one would understand the course of 
judicial decisions, Such understanding cannot be achieved within the 
confines of legal science traditionally conceived. 

Fifty years ago Langdell wrote, "Law is a science, and all the available 
materials of that science are contained in printed books/' 1S Today we 

10. Holmes, "The Path of the Law/' supra, note i, pp, 181, 184. 
u. Cardozo, The Nature of the Judicial Process (1921)* PP- *74~75- 

12. Harold J. Laski, Book Review (1936), 46 Yale Law Journal gt 952, 

13. 3 Law Quarterly Review 123-24. 


are disposed to recognize that judges are human beings, and that not 
all the forces which motivate judicial behavior are words in printed 
books. There is, of course, wide difference of opinion as to the compara- 
tive importance of different fields of knowledge in helping us to predict 
judicial behavior. Some are searching in fields of psychology and psycho- 
analysis, 14 without, I think, reaching any very significant results. Other 
students of the law have made illuminating studies of the social, eco- 
nomic, and political backgrounds of judges and decisions. 15 Equally use- 
ful studies are being made in the field of social institutional pressures 
that influence legislation. 16 

All this is of significance not merely to the legal philosopher but to 
the practicing lawyer. The client who wants to know whether to organize 
a partnership or a corporation or whether to include a particular sort of 
renewal clause in his lease is not particularly interested in the present 
state of the law. He wants to know how the courts are likely to deal with 
the transaction some years hence. The solicitor who advises him must 
know more than words in law books if he is to give intelligent advice. 
There is need even in these narrow questions for social vision, knowl- 
edge, judgment, and the ability to weigh available evidence. Much more 
obvious is the need when the legal question presented involves the de- 
velopment of an important economic institution, social organization, or 
political instrumentality. The functional conception of legal science thus 
dictates a new vision of the scope of legal education. The student of law 
must be familiar not only with statutes and cases but with the social 
realities on which the statutes and cases impinge, and with the social 

14. Frank, Law and the Modern Mind (1930), c. 12-13; T. Schroeder, "The Psy- 
chological Study of Judicial Opinions" (1918), 6 California Law Review 89; H. D. 
Lasswell, "Self -Analysis and Judicial Thinking" (1930), 40 International Journal of 
Ethics 354; Hutcheson, "The Judgment Intuitive: The Function of the 'Hunch' in 
Judicial Decisions" (1929), 14 Cornell Law Quarterly 274; Hutcheson, "Lawyer's Law 
and the Little, Small Dice" (1932), 7 Tulane Law Review i. 

15. See: Jerome Hall, Theft, Law and Society (1935), Appendix; Brooks Adams, 
"Law Under Inequality"; "Monopoly" in Centralization and the Law (1906), Lecture 
2; Boudin, Government by Judiciary (1932); Gustavus Myers, History of the Supreme 
Court (1912); W. Hamilton, "The Ancient Doctrine Caveat Emptor" (1932), 40 Yale 
Law Journal 1133; Nelles, "The First American Labor Case" (1931), 41 Yale Law 
Journal 165; Max Lerner, "The Supreme Court and American Capitalism" (1933), 
42 Yale Law Journal 668; C. G. Haines, "General Observations on the Effects of 
Personal, Political and Economic Influence in the Decisions of Judges" (1922), 17 
Illinois Law Review 96; R. A. Brown, "Police Power Legislation for Health and 
Personal Safety" (1929), 42 Harvard Law Review 866; M. Finkelstein, "Judicial Self- 
Limitation" (1924), 57 Harvard Law Review 338. 

16. See, for example, Childs, Labor and Capital in National Politics (1930). 



realities that, in turn, impinge on courts and legislatures as determinants 
in the development of the law. 17 It is forty years, now, since Mr. Justice 
Holmes wrote: "For the rational study of the law the black letter man 
may be the man of the present, but the man of the future is the man 
of statistics and the master of economics." 18 

Pervading the realistic analysis of legal rules and concepts there is 
implicit a definition of law in terms of empirical realities. This definition 
has been most trenchantly formulated by Mr. Justice Holmes.* 

Alternative functional definitions of law have been offered, 19 but all 
these definitions attempt to anchor the concept of law on a solid bottom 
of empirical fact. Perhaps the most important thing about these defini- 
tions is that they get away from the Blackstonian confusion that vitiates 
so much of traditional jurisprudence.-}" 


It is ancient wisdom that the human significance of law is found in the 
impact of law upon human behavior. Scire leges non hoc est verba earum 
tenere, sed vim et potestatem^ Yet actual investigation of the effects 
of law upon conduct still has an air of novelty about it. One of the great 
protagonists of sociological jurisprudence, Professor Kantorowicz, puts 
the case in striking fashion. When the lawyer or law student reads a code 
of laws (or for that matter a legal treatise, a statute, or a collection of 
decisions), "Let him ask himself with respect to each statement . . . 
what harms would social life undergo if instead of this statement the 
opposite were enacted. And then let him turn to all textbooks, com- 
mentaries, monographs, and reports of decisions and see how many ques- 
tions of this sort he will find answered and how many he will find even 
put." 21 
The problem of the effects of law upon human beings, which is central 

17. See Leon Keyserling, "Social Objectives in Legal Education" (1933)' 3S Columbia 
Law Review 437. 

1 8. "The Path of the Law," supra, note i, 187. 

19. See Cardozo, The Growth of the Law (igs4)> pp. 44, 52; C. J, Keyser, "On the 
Study of Legal Science" (1929), 38 Yalt Law Journal 413. 

20. Dig. 1.3.17 (Celsus), 

a i. Rechtswissensehaft und Sociologu (1911), 8* 

* [Ed. note: Justice Holmes* definition is quoted above, in "Transcendental Non- 
sense and the Functional Approach/* p. 61.] 

f [Ed. note: Several paragraphs have been omitted here since they repeat the argu- 
ment developed in "Transcendental Nonsense and the Functional Approach/' pp, 



to legal science, is a problem which classical jurists of many schools have 
found it convenient to ignore. Ignoring this problem has been particularly 
easy in view of the hallowed legal conventions that everybody is pre- 
sumed to know the law and that prudent men, the majority of mankind 
no doubt, obey the law. In that kind of world, all one needs to do in 
order to know the effects of a given rule is to read the rule and to 
appreciate its purpose. 

Unfortunately, in the real world, most of us are vastly ignorant of the 
law, and are continually violating or disregarding the law. The question, 
then, of how much actual observance is given to any legal rule is an 
empirical question that cannot be answered on a priori grounds. 

Again one turns to Professor Kantorowicz for a striking portrayal of the 
disdain of facts by traditional legal theory: 

This fiction (that every one knows the whole law of a state) con- 
tradicts the facts in the grossest manner. The truth is that nobody 
knows the whole law in its unsurveyable compass, that a few people 
know a portion of it, that most know nothing of it. So true is this 
that if a private citizen has acquired a thorough knowledge of the 
law of the state he will usually belong to a class of shady gentlemen. 
The usurer, the criminal apprentice, the yellow journalist, the fraud- 
ulent promoter know the rules which interest them accurately 
enough; the wholesale merchant, the artist, the statesman, the hus- 
band have only a sporadic acquaintance with even the paragraphs 
of the sales, copyright, public, international, or family law, without 
being disturbed in their activities by this ignorance. The traveller in 
a foreign country makes himself familiar with the language, the his- 
tory, the art, the customs of the people not even in a dream does it 
occur to any one to so much as open its statute books. 22 

It is certain that law does not secure obedience except in so far as it is 
known. Thus an important problem in determining the human signif- 
icance of any rule or law is the problem of discovering the extent to 
which people theoretically affected by the rule are actually aware of it. 
From the point of view of the legislator, the problem takes a special form: 
In order to make this or that legislation effective, how can knowledge of 
it be conveyed to those who are concerned, including those who are ex- 
pected to enforce it? The influence of newspapers, public trials, law 
treatises, and other instruments of education or propaganda, upon pop- 
ular legal beliefs presents a fascinating problem for the sociological jurist, 

22, Kantorowicz (sub pseud, Gnaeus Flavius), Der Kampf um die Rechtswissenschaft 
(1906), pp. iS-H- 

8 7 


and the results to be achieved in such investigations may prove of con- 
siderable practical value. 

The functional approach suggests that instead of tracing the effects of 
a decision along celestial lines of logical force we may look rather to 
the actual process of learning, or understanding and misunderstanding, 
which governs the interpretation that will be put upon a statute or a 
decision by laymen, by administrative officers, and even by successive 

The existence of this empirical problem has been somewhat obscured 
by the traditional notion that legal rules may be deduced from decisions 
and that these rules "bind" future judges. As a matter of fact, no number 
of decisions can logically provide a rule of law, for the simple reason 
that a universal proposition can never be validly inferred from any 
number of particular propositions. A decision is a particular proposition, 
and a rule of law is a universal proposition. 

The search for a logical formula that will determine precisely what 
rule each decision implies 23 is a wild goose chase starting from a logical 
confusion. The functional approach substitutes a wholly empirical ques- 
tion: "What influence is a legal decision likely to have on future cases?" 
This is not always a simple question to answer, as competing counsel in 
most cases will recognize. There is a vocabulary and a technique for 
restricting decisions to the particular facts of the case, that is to say for 
distinguishing any new case and thus destroying the precedent value of 
the old case. There is another vocabulary and another technique for 
drawing wider and wider morals from a decision, and applying these 
morals to cases more and more distantly removed. In selecting and com- 
promising between these techniques, courts make choices which cannot 
be blamed on logic. To describe these choices as they occur is the objec- 
tive of a functional theory of legal precedents. 24 

The problem of interpreting past decisions is not a problem restricted 
to the field of judicial action. A similar problem exists in the field of 
public administration and in the field of popular legal opinion. Here 
again there is need of patient study to show how people actually do 
interpret and misinterpret laws and cases. The results of such study may 
make it easier for judges and legislators alike to foresee the consequences 
of action. 

The study of mental reactions to rules and decisions, while essential, 

$3. For examples of this search see Goodhart, "Determining the Ratio Deddendi 
of a Case" (1930), 40 Yale Law Journal 161. 

24. K. N. Llewellyn, The Bramble Bush (1930), pp. 47, 6i~66. OHphant, "A Return 
to Stare Decisis" (*0s8) 6 American Law School Review 3*5, 317, i8, F, S, Cohen, 
Ethical Systems and Legal Ideals (1933), pp. 33-37. 



is not sufficient to determine their full effects. Beyond this task is the 
task of determining how the incentives to obedience and disobedience 
will mold reactions to law. 

The scope of this latter task is underestimated by those who deny that 
law consists of commands and point out that most legal propositions, at 
least outside the field of criminal law, are declaratory rather than impera- 
tive. What this criticism overlooks is that legal propositions which are 
declaratory in form owe their legal force to threats of state action. 

An order does not cease to be a command because it contains an 
explanation of what it is that is commanded. Nor is a law permitting 
a man to do something at his option, e.g. to dispose of his property 
by testament, any less a part of the system of imperatives, in this case 
of what we call the law of property. It certainly is an imperative to 
the children or other heirs, who when the will is properly made, 
must yield certain goods to legatees or devisees. 25 

The human significance of any rule of law thus depends upon the 
extent to which it secures obedience. This, in turn, will depend upon 
the strength of the organized desire for which the rule provides an en- 
forcing instrument, as compared with the strength of the organized desire 
which the rule is intended to frustrate. The failure to recognize this per- 
sistent struggle that underlies all law enforcement is written large in the 
history of social reform legislation. Again and again idealists have suc- 
ceeded in writing their hopes on the statute books, only to discover in 
dismay that laws are not self-executing. Out of the past century's experi- 
ence with social reform legislation certain elementary facts are beginning 
to emerge for instance, that a law designed to help the weaker of two 
parties to a bargain will be useless if it is possible to "contract out," and 
that legislation designed to protect an oppressed class will not be ef- 
fectively enforced unless it sets up some independent agency capable of 
representing the interests of that class in securing enforcement of the 
legislation. 26 

Every legal problem, viewed functionally, involves a conflict of inter- 
ests. The stability of any solution will depend, at least in part, upon a 
correct appraisal of the desires that will be effectuated or frustrated by 
the solution. 27 

The problem of weighing incentives to obedience and disobedience 

25. M. R. Cohen, Law and the Social Order (1933), p. 206. 

26. See W. F, Dodd, Administration of Workmen's Compensation (1936), pp. 16-26, 
70-99. Cf. E. A. Parry, The Law and the Poor (1914). 

27. See, for a significant application of this approach to the law of larceny, J. Hall, 
Theft, Law and Society (1935), chap. 6. 


leads finally to the problem of weighing social forces. What the law 
ought to accomplish in any given situation cannot be determined with- 
out determining what the law can accomplish. This latter question leads 
us inevitably to seek some measurement of the organized force that can 
be brought to bear on any legal issue. The force of law depends partly, 
to be sure, on the death-dealing equipment of the state; it depends also 
upon the essential human services which the state controls; it depends 
at the same time upon the organizational loyalties without which armies, 
police forces, and all social institutions disintegrate. The effectiveness of 
the opposition to law, at any point in the legal order, will likewise be 
proportionate to the physical, economic, and emotional power which can 
be mustered to oppose a given objective affirmed by the law. Recent his- 
tory in Italy, Germany, Austria, and Spain, reveals the tenuousness of 
traditional analyses of democracy in terms of constitutional rights and 
procedures. From a realistic point of view, democracy is gone when the 
theoretical power of the majority to govern ceases to correspond to an 
actual power to compel obedience. From this point of view the question 
of whether a democracy can tolerate vast concentrations of financial 
power assumes critical significance. In constitutional as well as in private 
law, the stuff of which living law is made is not concepts in logical ar- 
rangement but conflicting interests diversely organized and pitted against 
each other in an ever shifting battle line. A realistic appraisal of the 
human meaning of any legal rule involves us in a measurement of human 
desires and human powers in every domain of life. 

The question of the proper scope of law has been argued back and 
forth for a good many centuries, and nearly all of the argument has been 
in a priori terms. From the functional standpoint, the problem takes a 
form in which empirical evidence becomes relevant. The central question 
is that of the effectiveness of various possible legal rules and arrange- 
ments. From this standpoint, if modern history shows a progress of the 
law in social control it is significant to ask whether this progress is not 
primarily ascribable to an increase in the realm of jurisdiction dominated 
by the state through its increased physical force rather than to any prog- 
ress in legal wisdom or the moral qualities of humanity. In the modern 
centralized nation the monopoly of internal power by the sovereign, 
based upon centralizing developments in the technology of industry, com- 
munication, and warfare, has made it possible to exercise effective legal 
control over many relationships that were once outside the realm of 
effective control. If legal development has not made full use of new op- 
portunities, this is partly due to the heritage of thinking from an age in 
which the state could not undertake certain tasks of social control for 



lack of power, and in which it accordingly became the accepted duty of 
the moralist to prove that those things were not worth doing. A state 
which cannot secure obedience from those who control its industry may 
at least save face by issuing the unbreakable commandment, "Do as you 
please.' 1 28 Unfortunately, the fact tends to be viewed as an ideal. In 
political theory, at least, conservatism may be defined as the idealization 
of yesterday's misfortunes. 

If the temporal variation of state power offers a useful key to the under- 
standing of legal history, the varying degrees of state power in different 
fields of human conduct offer an equally useful key to the understanding 
of the law of a given epoch. The law is one among many "control" in- 
stitutions. The direction of its powers is largely determined by a process 
of competition with organized religion, organized education, the family, 
professional and mercantile agencies of control, and various other social 
institutions, each with its own "inner order" and its own sanctions. 29 
The disruption of any of these agencies throws new tasks upon the law; 
their development relieves the legal order of old responsibilities. 

In this competition with other organizations of social force, the law 
realizes the limitations of its machinery. Operating through courts, it is 
required by dictates of social economy to concentrate its attention upon 
facts readily verifiable. Laws against adultery are notoriously unenforce- 
able. The fact that land cannot be concealed gives point to the peculiarly 
rich development of legal control over real property. The public events 
of birth, marriage, and death furnish stable fulcrums for legal leverage. 
The organization of men into permanent groups offers new pressure 
points for the activity of the law. 30 

To describe law-in-action is to describe the inter-relationships between 
judicial decisions and all the other events of the social scene. The mean- 
ing of law depends not only upon the factors already noted, which deter- 
mine how far it will be observed, but on all the social facts that give law- 
observance and law-breaking their human significance. In writing the life- 
history of a legal rule one does not reach the end of the story when the 
rule is obeyed or disobeyed. There remains to be told the meaning of 
obedience or disobedience, in terms of social institutions and customs, in 
terms of the material things over which law gives control, in terms of 
human habits, modes of thought, fears, hopes, pleasures, and pains. 31 

28. Cf. F. S. Cohen, "The Socialization of Morality" [below, pp. 337, 340], 

29. See Ehrllch, Fundamental Principles of the Sociology of Law, trans, by Moll 
(1936), chaps. 2-3. 

go, F. S. Cohen, Ethical Systems and Legal Ideals (1933), pp. 269, 270. 
31. Ibid., pp. 271-85. 

9 1 


The problems raised in the search for the human meaning of legal 
rules, decisions, concepts, and institutions are problems to which the 
literature of functional jurisprudence gives, perhaps, only faltering and 
partial answers. To have lifted these problems to the level of conscious 
formulation is itself an achievement. What remains is for the future. 

A functional jurisprudence, in facing this task of tracing the human 
significance of law, will draw upon the results of scientific study in many 
related fields. Already first attempts have been made to trace the human 
consequences of specific rules and decisions. 32 There is a growing litera- 
ture that analyzes, from the legal standpoint, the fields of conduct to 
which law is applied. 33 More important, perhaps, than any of these 
published studies is the incorporation of social investigation into the 
process of law administration. The growing practice of including eco- 
nomic materials in legal briefs, the increased use of economists and statisti- 
cians by administrative bodies, and of psychiatrists and social workers 
by courts, the growing utilization of social research in legislative hearings 
and investigations, all testify to the contemporary significance of the func- 
tional approach and its promise for the future. 


The normative use of definitions is one of the most prevalent sources of 
confusion in legal criticism. 

Those who define law as an outpouring of the Volksgeist are prone to 
argue that law which shows their theory to be false, e.g. code law, is 
undesirable. Those who define law as the will of the sovereign are apt to 
conclude that judge-made rules which ignore or defy the will of the 
sovereign are bad law. Those who define law as a body of authoritative 
principles recognized by the courts are likely to condemn as evil any 
course of judicial decisions that violates these assumed principles, 84 

32. See, for instance McCracken, Strike Injunctions in the New South (1931). 

33. In addition to the vast modern literature on criminology, there is a growing 
corpus of legally oriented material on such subjects as corporate practice, banking 
practice, the organization and functioning of trade unions, the disposition of de- 
cedents' estates, industrial accidents, automobile accidents, contracts of employment, and 
the psychology of the witness, 

34. Bertrand Russell points to a similar fallacy in the realm of philosophy; 
"The philosopher first invents a false theory as to the nature of things, and then 

deduces that wicked actions are those which show that his theory is false. To begin 
with the traditional Christian: he argues that, since everything always obeys the will 
of God, wickedness consists in disobedience to the will of God. We then come on to 
the Hegelian, who argues that the universe consists of parts which harmonise in a 



It is one of the serious dangers of the functional approach that those 
who invoke it for the purpose of description may without further thought 
utilize it as a criterion of value. It is important for the jurist to remember 
that when he has described the human significance of a rule he has not 
thereby justified its existence. The task of valuation remains to be faced. 

Caution against normative use of a functional definition of law is par- 
ticularly pertinent because of the ambiguity of the word "function." When 
one says, for instance, that it is the function of the judge to apply pre- 
existing law to the facts of a case, one may mean that this is what a judge 
ought to do or simply that this is what judges actually do. A statement 
of the latter type is purely descriptive. A statement of the former type 
assumes a standard of values, and is, in effect, an ethical judgment. 

It is to be emphasized that functional analysis of a legal rule or decision 
is purely a descriptive process. On the other hand, an intelligent value 
judgment upon any legal rule or decision presupposes such descriptive 
functional analysis, but also involves an ethical premise. 

It was Bentham's great and enduring contribution to legal criticism to 
insist that the value of a legal rule depends upon its human consequences. 
In the field of legal criticism, or normative jurisprudence, functionalism 
is simply a development of utilitarianism. It is a development, however, 
which seeks to overcome certain weaknesses in the philosophy and method 
of Bentham and his immediate successors. 

In the first place, Bentham failed to distinguish between his general 
theory of value, i.e. that the value of any act depends upon its con- 
sequences, and his theory of the good, i.e. that pleasure or happiness is 
the only good. The latter theory is one that many reasonable people re- 
ject, and although I happen to believe that all the objections thus far 
levelled against Bentham's hedonism are inconclusive, 35 I should agree 
that one may adopt alternative standards of ultimate value without 
getting into logical self-contradiction. 

But no matter what other standards of value one may adopt, the es- 
sential basis of utilitarianism remains. 86 

Bentham's doctrine that the value of any legal rule depends upon its 

perfect organism, and therefore wickedness consists of behaviour which diminishes the 
harmony though it is difficult to see how such behaviour is possible, since complete 
harmony is metaphysically necessary. . . . These examples have, I hope, made it plain 
that a metaphysic can never have ethical consequences except in virtue of its false- 
hood; if it were true, the acts which it defines as sin would be impossible." Sceptical 
Essays (1928), ch. 7 ("Behaviourism and Values"), p. 91. 

35. F. S. Cohen, Ethical Systems and Legal Ideals (1933), pp. 185-220. 

36. This is recognized by so vigorous a critic of hedonism as G. E. Moore. Ethics 
(1912), chaps. 1-3; Principia Ethica (1903), chaps. 1-2. 



consequences was met with the philosophical challenge: Why should we 
assume that the value of anything depends upon its consequences? Func- 
tionalism exposes the emptiness of this challenge, by showing that the 
distinction between law and its consequences is purely arbitrary. The 
meaning of a legal rule is not action commanded but action caused. One 
cannot evaluate a legal rule or institution intelligently without knowing 
the action caused which constitutes the human meaning of the rule or 
institution. The challenge to Bentham's general theory of value turns 
out to be only a verbal confusion. 

A further weakness in Bentham's utilitarianism springs from the gen- 
eral state of the social sciences at the time Bentham wrote. While insisting 
that the value of law depends upon the effect of law on human conduct, 
Bentham himself was unable to utilize any scientific study of such effects, 
for the simple reason that no scientific study of such effects had ever been 
made. The bare materials for such a study judicial statistics, general 
social statistics, and social case studies were lacking. Bentham therefore 
had to rely entirely upon common observation in making his own cal- 
culations of the effects of various legal rules and institutions. Today 
jurisprudence can draw upon a wealth of material, scientifically collected 
and organized, in tracing the effects of law in human society. 

In the field of legal criticism the functional method may thus be con- 
ceived as essentially a reorientation of utilitarianism to a wider philo- 
sophical perspective and to a broader horizon of relevant knowledge in 
the fields of psychology, economics, criminology, and general sociology. 


The Relativity of Philosophical Systems 
and the Method of Systematic Relativism 


Once upon a time, two Hottentot hunters came upon a herd of elephants, 
and each hunter proceeded to systematize the situation by counting the 
elephants. It so happened that one of the hunters counted from left to 
right and the other hunter counted from right to left. Despite this im- 
portant difference in starting point and in the direction of research, the 
two hunters agreed that there were eleven elephants. But whereas one 
hunter insisted that Elephant No. i was a large male with a bad temper 
and offered many plausible arguments in support of this thesis, the other 
hunter insisted that Elephant No. i was a small and rather timid young 
female, and offered equally plausibl'e arguments in support of that thesis. 
From argument the two hunters descended to epithet, and would finally 
have come to blows but for the fact that a systematic relativist happened 
along who offered to mediate the quarrel. 

When he had listened to both sides, the systematic relativist said: "It 
is clear that the opposite characteristics which the two of you attribute to 
Elephant No. i cannot, in the nature of elephants, co-exist. However, the 
world is a manifold of systems, and the two of you are talking in two 
different systems. Elephant No. i in one system is identical with Elephant 
No. 1 1 in the other system. Speaking generally if n represents the ordinal 
number of any elephant in one system and n f represents the ordinal 
number of the same elephant in the other system, your formula of transla- 
tion in order to understand each other is: n equals 12 ra'. So you see, 
gentlemen, when you ascribe incompatible characteristics to Elephant 
No. i, you are not contradicting each other at all, and there is no dispute 
between you for me to settle/' 

This was very confusing to the two Hottentot hunters, so they ate the 

Published in The Journal of Philosophy, 1939. 



systematic relativist and called in a nearby witch-doctor to settle their 
dispute. The witch-doctor, after donning his judicial robes and examin- 
ing the entrails of a bull, declared: "Elephants should always be counted 
from left to right. This follows from the nature of the universe, and also 
it follows from the nature of elephants. In accordance with this simple 
and salutary rule, we find that Elephant No. i is, in reality, a large male 
with a bad temper. The hunter who has denied this obvious truth has 
fallen into error by failing to observe this simple and salutary rule. In 
fact he has been thinking backwards and standing the universe on its 
head. For these errors he should make due compensation." 

The two hunters were well satisfied with this common-sense decision, 
which they faithfully observed, and lived happily for ever after. 


The thesis which I wish to defend is that the systematic relativist was 
right in thinking that there was no inconsistency between the viewpoints 
of the two Hottentot hunters, that each was right in what he was affirm- 
ing and each was wrong in thinking that he was contradicting his compan- 
ion, and that the two Hottentot hunters should have eaten the witch- 
doctor instead of the systematic relativist. Put more abstractly, statements 
which, if made within the same system, would be incompatible proposi- 
tions, may be both true in two different but compatible systems, and may 
even be identical within two such systems. The thesis may be applied, I 
think, to the doctrines of philosophy as well as to the practical beliefs of 
uncivili2ed men. 


The traditional controversies of philosophy, monism versus pluralism, 
rationalism versus empiricism, realism versus subjective idealism, ideal- 
ism versus materialism, and all the other squabbling couples of philos- 
ophy, are a perennial source of discouragement to the student of philos- 
ophy. How does it happen that after more than two thousand years of 
hard thinking we are no nearer the solution of these issues of ontology 
and epistemology than were the thinkers of ancient Greece? Is progress 
in philosophy an illusion? Are all philosophers somehow off on the wrong 
track? A good many currents of contemporary philosophizing are funda- 
mentally attempts to answer these questions. Pragmatism would deny 
the category of truth or falsity to philosophical doctrines and issues that 
do not have consequences for conduct. Logical positivism assigns all 


metaphysical doctrines and disputes to the realm of nonsense. There is, 
I think, an element of truth in these doctrines, as well as in many other 
contemporary doctrines that seek to characterize traditional philosophical 
disputes as unreal or verbal. At the same time none of us really believes 
that all of the founders of the great philosophical systems were merely 
wasting their time playing with words that are devoid of significance. For 
the fact is unescapable that all of the natural and social sciences, all of 
the systems of law and ethics that we know, have taken their growth from 
these supposedly insignificant philosophical doctrines. If we are to be 
faithful to history, we must explain not only why philosophers do not 
agree but also why, even in their disagreements, philosophers have il- 
lumined the world. 

Both of these requirements which history imposes are met, I think, by 
the thesis or hypothesis of systematic relativism. Applied to the field of 
systematic philosophy, this viewpoint suggests that the differences be- 
tween philosophic systems are not differences to which the categories of 
truth and falsity are relevant, that we are dealing here rather with dif- 
ferences of logical structure or perspective, and that philosophies which 
have been regarded as contradictory may turn out on analysis to be 
compatible or even identical in content, though differing as to form. 

We may perhaps find some light on the inter-relations of philosophic 
systems if we consider the field in which rational system-making has had 
its longest career, that is, the field of geometry. Euclid himself used a 
great many terms for which no rigorous definitions were offered. 1 The 
euclidean geometry has been restated in more adequate form by Hilbert, 
who uses only five undefined terms, point, straight line, plane, between, 
congruent? The mathematician Veblen has succeeded in reducing the 
number of undefined terms in euqjidean geometry to two, namely, point 
and order* In Veblen's system of euclidean geometry, lines, angles, cir- 
cles, and all the other elements of euclidean geometry are logical con- 
structs of point and order. The mathematician Huntington has formu- 
lated a system of euclidean geometry in which the only geometric elements 
which are undefined are sphere and inclusion* 

Suppose now that certain bad manners that obtain among philosophers 
were taken over by geometricians. Each of these system-makers would 

1. See T. L. Heath, Elements of Euclid (1908). 

2. D. Hilbert, Foundations of Geometry, trans, by Townsend (1902), p. 3. 

3. O. Veblen, "A System of Axioms for Geometry," in Transactions of the American 
Mathematical Society, 5 (1904), 343~ 8 4- 

4. Huntington, "A Set of Postulates for Abstract Geometry/' in Mathematische An- 

nalen, 75 (i9i~*9*3) 5**-59- 



feel constrained to assert that the geometrical world in reality consists 
of the basic concepts which are the starting points of his system. Each 
system-maker would show that the terms used as starting points by other 
system-makers are not in reality basic, and can be analyzed and explained 
in terms of his own basic concepts. Our bad-mannered geometrician might 
go on to argue that each rival system puts the cart before the horse, or 
stands the world on its head, or runs into a vicious circle, because it 
assumes as postulates propositions which presuppose the very theorems 
they are designed to prove, and which, in his own system, are derived and 
deduced from those theorems. From all of which our bad-mannered 
geometrician would conclude that the crisis in contemporary geometry is 
the result of not looking at first principles Hrst and thus failing to see 
that in reality the world of space consists of points and order or of spheres 
and inclusion or some other sufficient set of geometric elements. 

In fact, however, we find that geometricians who have elaborated dif- 
ferent systems of euclidean geometry are perfectly willing to recognize 
the logical equivalence of these systems. Formulae of translation have 
been worked out which permit any proposition in one of these systems 
to be equated with some proposition in any of the other equivalent 
systems. 5 

Can the same principle of logical tolerance be applied to the diversity 
of philosophic systems? 

I believe that this question is to be answered in the affirmative. Let me 
say at the outset, however, that I cannot offer a rigorous proof of this 
thesis. Such a proof would have to take the form of a series of translation 
formulae demonstrating that for every proposition in System A there is 
an equivalent proposition in System B. Unfortunately the present state 
of development of philosophic system-building does not permit rigorous 
proof of this character. Indeed I know of no philosophic system, not even 
excepting the systems of Spinoza, Descartes, or Wittgenstein, in which a 
clear formulation of postulates and theorems has been achieved. Never- 
theless I think it possible to offer some argument in support of the thesis 
that apparently conflicting philosophies may turn out on analysis to be 
compatible or even equivalent in content. 

From the standpoint of the natural history of philosophies we may 
trace the growth of philosophic systems along a line of development that 
recurs again and again. In the beginning is the idea that gives a system 

5. The situation in physics is comparable. Einstein defines the principle of special 
relativity in these terms: "If K. is an inertial system, then every other system K/ which 
moves uniformly and without rotation relatively to K is also an inertia! system; the 
laws of nature are in accordance for all inertial systems" (The Meaning of fabttolty, 


its distinctive character and importance. Applied to some current prob- 
lem or to some field of experience the idea enlightens us. A broader 
formulation or application of the idea is attempted. Facts appear that do 
not conform to the scheme. For a time these facts may be ignored or bent 
to fit the idea. But at some point this becomes impossible. The idea is 
revised to take account of the new facts. As systems grow more inclusive 
they tend to incorporate more and more qualifications. In this manner 
divergent systems tend to approximate each other as they grow more in- 
clusive. A philosophy of aesthetics, if it treats of the narrow realm of life 
in studios, museums, and concert halls, may have no relevance to other 
branches of philosophy, but if the field of aesthetics is viewed in broader 
proportions, as Kant viewed it, covering the entire field of perceptual 
experience, then a doctrine that covers that field must be vitally relevant 
to the problems of epistemology, ethics, and cosmology. In the field of 
physics the classical conflict between the Ptolemaic and the Copernican 
systems vanishes into a non-existent ether if enough qualifications are 
laid upon the earlier system. Political systems that appear to be dia- 
metrically opposed may approximate identity as each qualifies its dis- 
tinctive idea to take account of a common world of fact. 

One may suggest a geometric analogy. Take any two distinct points in 
a given plane. It is possible to draw about these points as centers two 
mutually exclusive circles, enclosing no space in common. But increase 
the diameter of the two circles, and, no matter how far apart, they will 
eventually overlap. Increase the diameter further, and the common space 
grows proportionately while the relative fraction of space covered by one 
and not the other approaches zero. If finally we speak of the system of 
all points which are included in circles having point A as a center, and 
the system of all points included in circles having point B as a center, we 
find that the two systems are no longer mutually exclusive, or even over- 
lapping, but are in fact identical, both including all the points of the 
given plane. So, I suggest, two philosophic systems may be so restricted 
in scope and so far apart in origin as to have no content in common. 
But increase the diameter or scope of the two systems and you have an 
increasing common content. And what is perhaps more important, you 
have no content in either system which cannot be reached and included 
by an extension of the other system. 

(/) Monism and Pluralism 

Typical, perhaps, of the traditional antinomies of philosophy is the con- 
flict of monism and pluralism. The statement that the world is one and 
the statement that the world is many appear to be inconsistent doctrines. 



If, however, we proceed to qualify the doctrine of monism, as all flesh- 
and-blood monists have qualified it, 6 by recognizing that the one world 
has many parts, aspects, or modes, and if we likewise qualify the doctrine 
of pluralism, as all flesh-and-blood pluralists have done, 7 by recognizing 
that the many things of the world do constitute a world, there is no 
longer any logical inconsistency between the two doctrines, and systems 
built about these different doctrines may be compatible and may even 
turn out to be identical. 

Thus Spinoza, generally regarded as the most monistic of the monists, 
asserts: "Substance absolutely infinite is indivisible." [Ethics, sec. XIIL] 
"Besides God no substance can be granted or conceived/' [Sec. XIV.] 
But Spinoza, after thus affirming the principle of monism, is quick to add 
this qualification: "From the necessity of the divine nature must follow 
an infinite number of things in infinite ways that is, all things which 
can fall within the sphere of infinite intellect." [Sec. XVI.] 

Thus the monist Spinoza admits the existence of an infinite number 
of things. Is there any basic contradiction between such a monism and 
the extreme pluralism of Leibniz? Leibniz is considered the most plural- 
istic of the philosophical pluralists because he said: "These Monads are 
the real atoms of nature and, in a word, the elements of things." 
[Monadology, Sec. 3.] "The Monads have no windows, through which 
anything could come in or go out." [Sec. 7.] 

This extreme atomistic pluralism is soon qualified, for section 40 of 
the Monadology states: "We may also hold that this supreme substance, 
which is unique, universal and necessary, nothing outside of it being 
independent of it, this substance, which is a pure sequence of possible 
being, must be illimitable and must contain as much reality as is possi- 
ble." [Sec. 40.] "Whence it follows that God is absolutely perfect." 
[Sec. 41.] 

We may say, I suppose, that what is primary and basic for Spinoza 
is secondary and qualifying for Leibniz, and vice versa. But logical 
opposition between Leibnizian pluralism and Spinozistic monism is 
possible only if the qualifications that appear in the sixteenth or fortieth 
proposition of the system are ignored. 

To recognize that a system of monism may be logically equivalent to 
a system of pluralism is not to assert that the two systems are emotionally 
identical or equivalent as stimuli to thought, and I do not mean to 
dismiss as unimportant the differences involved in the two formulae. 
Accepted as directives of rational inquiry, monism suggests that in any 

6. See, e.g., Spinoza, Ethics, trans, by Elwes (1901), sees. XIII, XIV, XVI. 

7. See, e.g., Leibniz, Monadology, trans, by Latta (1925), sees. 3, 4, 7, 40, 41. 



situation we are to search for the underlying unities that hold together 
elements apparently distinct or opposed. Pluralism suggests that we 
look for the hidden lines of cleavage in terms of which apparent unities 
may be resolved into their separate components. These divergent ap- 
proaches will vary in comparative usefulness depending upon time and 
place, temperament and purpose. It is important, I think, to recognize 
these differences. It is also important, I think, to establish that the 
differences between two such philosophical systems do not constitute a 
true-false issue, that these differences are differences of structure, of 
perspective, of emotional value, social symbolism or practical usefulness, 
rather than differences of objective content, i.e., differences in what is 

(2) Realism and Subjective Idealism 

Consider the puzzle of the epistemologists: "Do things exist apart from 
our knowledge of them?" The question appears at first blush to permit 
of a clear yesor-no division between realists and subjective idealists. 
The latter begin bravely enough with "esse est percipi/' 8 but in the 
end they agree that our ancestors lived before we thought of them, 
that forces of which we are not aware exist and affect our lives, and 
that no great physical transformation comes over a chair when we stop 
looking at it. 9 These facts the subjective idealist may explain in terms 
of a divine being that perceives things when mortals do not perceive 
them, or in terms of a distinction between a kind of existence which is 
found when an object is being perceived and some other mode of being, 
less honorable than true existence, which may be assigned to objects that 
are not being perceived but would be perceived or would have been 
perceived under certain conditions. Whatever the qualification adopted, 
the subjective idealist, if he is not discouraged too soon, achieves a 
system which is locable in the same world of experience in which the 
realist locates his propositions. 

Again one can point to differences of emotion or attitude. What is the 
rule, the first thing to consider, or the Number One Elephant in one 
philosophy, may be the exception, the last thing to contemplate, or 
Elephant No. 11, in another philosophy. But every significant truth 
that can be expressed in the system of subjective idealism can be ex- 
pressed, in some other terms, in the system of realism. If the realist 
says that chairs do not dissolve when they are not being perceived, 

8. See Berkeley, Treatise Concerning the Principles of Human Knowledge, sec, 3. 

9. Ibid., sec. 33. 



the subjective idealist may say with equal force that divine perception 
of chairs continues when our own human perceiving is interrupted. 
The empirical meaning, the verifiable content, of the two propositions is 
identical, however divergent the emotional overtones may be. 

(5) Materialist and Idealist Interpretations of History 

Consider, further, the supposed opposition between materialism and 
idealism as philosophies of history. The historical materialist, in de- 
fending his position, will show how each significant event in history has 
been a product of economic developments, technology, material re- 
sources, the natural history of earth, air, fire, and water. 10 The idealist 
counters by demonstrating that the role of material things in history 
can always be explained in terms of human will, knowledge, belief. 11 
Things are not resources in themselves; they become resources as men 
grow more resourceful. The economic order is itself an order of human 
wants and sacrifices, satisfactions and acts of will. Technology is a form 
of knowledge. 

It seems to me that in this argument both parties are right in what 
they affirm and both parties are wrong in believing that they have 
"cornered" reality. 

If both parties agree that there is a determinate relationship between 
human ideas and environmental realities, it is immaterial that one says, 
"The idea creates the environment/' and the other says, "The environ- 
ment creates the idea/' Whatever can be said in one language can be 
said in the other. 12 

I do not mean to suggest that materialists and idealists necessarily 

10. Marx offered the following formulation of the thesis of materialism: "The 
mode of production in material life determines the general character of the social, 
political and spiritual processes of life. It is not the consciousness of men that deter- 
mines their existence, but, on the contrary, their social existence determines their 
consciousness" (Marx, Preface to A Contribution to the Critique of Political Economy, 
trans, N. I. Stone [1904], p. u). Cf. also Bukharin, Historical Materialism (1935): "The 
mental life of society is a function of the forces of production" (p. 61). 

11. Thus Hegel asserts: "The history in question has constituted the rational neces- 
sary course of the World-Spirit , . ." (Philosophy of History, trans, Sibree [1894], p, u), 
And cf. Schopenhauer: "The world is my idea." (World as Will and ldea f Bk. I, sec. i). 
Recent and instructive examples of the idealistic approach In history are to be found 
in Whitehead, Adventures of Ideas (1933), and Benedict, Patterns of Culture (1934), 
particularly chapter IV* 

12. Thus Engels himself specifically disclaims the idea that economic determinism 
is the exclusive mode of historical explanation, (Letter of Engels to J. Bloch, Sept. ai 
1890, Marx and Engels, Correspondence: 1846-18^ [1934]* P 475-) 


agree with each other on all historical questions. After all, materialists 
do not always agree among themselves, nor any more do idealists. What 
I do suggest is that disagreements in appraising certain historical events 
are not a necessary consequence of the fact that one formulates ex- 
planations in terms of ideas and the other in terms of material things. 
Every historical statement that is put forward by a materialist may be 
accepted by an idealist, and vice versa. The formula of translation would 
run roughly as follows: "Wherever the idealist ascribes importance, 
imminence, or causal efficacy to an idea, the materialist is to ascribe 
importance, imminence, or causal efficacy to the material things that 
accompany the idea, and vice versa/' 

(4) Other Philosophical Antinomies 

The analysis thus applied to the supposed conflicts of monism versus 
pluralism, subjective idealism versus realism, and historical materialism 
versus idealism, can be applied with equal force, I think, to other 
traditional conflicts of philosophy. The effect of this analysis would be 
to demonstrate that what appear to be differences of opinion between 
philosophers may turn out, on reflection, to be differences of perspective 
or terminology. 

The multiplication of philosophical systems, then, far from proving 
the futility of philosophy, should rather be taken as a mark of progress. 
When new types of music, painting, or architecture appear which violate 
the rules embodied in earlier forms of art, we do not feel compelled 
to reject the earlier art. Neither do the disagreements of artists demon- 
strate that art does not progress. Philosophy, like art, progresses in so 
far as it develops new rhythms and patterns of analysis and synthesis, 
new perspectives upon reality, new organa fitted to the diversity of 
human minds and interests. 


The method of analysis which we have called systematic relativism is 
applicable, I believe, not only to systems of philosophy but to all 
rational systems. It offers, I think, an organon for eliminating unreal 
questions and false alternatives in the jungles of politics as well as in 
the Elysian fields of philosophy. Broadly stated, the viewpoint of system- 
atic relativism may be summed up in the thesis that every assertion 
and every concept depends for its significance upon a systematic context 
which is not uniquely determined by the assertion or concept itself. 



Except within a given context an assertion is neither true nor false, 
neither probable nor improbable, neither a priori nor derivative. Except 
within a given context a concept is neither simple nor complex, neither 
one nor many. Except within a single context one assertion cannot be 
said either to support or to contradict another assertion. 13 Order, 
causality, proof, analysis, all have significance only within a system. 
And many systems are possible. 

This viewpoint compels a reformulation of significant categories. With 
some trepidation I offer a few suggestions for this task of reformulation. 

(/) The Relativity of Simplicity 

Any ordered system begins with undefined terms which are used to 
define other terms. For purposes of the system, the undefined terms are 
ultimate simples, and all other concepts in the system can be explained, 
analyzed, or defined in terms of these simples. Different systems, how- 
ever, may locate simplicity in different parts of the universe. Within the 
system of chemistry the physical elements are the base points of analysis, 
but within the system of physics each of the elements is a composite 
structure of forces. For economics a human want is an ultimate datum. 
For psychology the want is something to be analyzed and explained. No 
significant term is in itself simple or complex. Simplicity and complexity 
are relative to context. 

If this view is sound, the search for First Elements or Atomic Facts, 
whether carried on by metaphysicians 14 or by antimetaphysicians, 15 is, 
like the search for First Elephants, doomed to failure, unless the seeker 
recognizes that things are "first" or "atomic" only within the framework 
of a given system and that no given system monopolizes reality. 

Explanation or analysis involves direction. In any concrete situation 

13. Cf. Carnap, Philosophy and Logical Syntax (1935), p. 78. 

14. The classic argument for the existence of simple substances is that of Leibniz: 
"And there must be simple substances, since there are compounds; for a compound Is 
nothing but a collection or aggregatum of simple things" (Monadology, sec. 2). This 
argument fails to exclude two logical possibilities (a) that there are no compounds 
per se, but merely entities which are compounds relative to a given system, and which 
may be simples relative to another system; and (b) that compounds are collections or 
aggregates of other compounds and that there are no simples, 

15. Wittgenstein echoes Leibniz: "2,021. Objects form the substance of the world. 
Therefore they cannot be compound" (Tractatus Logico-Philosophicus [1922], p. 35). 
And cf. Russell, Our Knowledge of the External World as a Field for Scientific Method 
in Philosophy (1915), pp. 51-55. 



analysis can proceed along alternative lines. 16 You can divide a piece 
of pie into six equal portions, or into five equal portions, or into fat, 
protein, and carbohydrates, or into carbon, hydrogen, and various other 
physical elements. Does the pie now, in reality, consist of sixths, fifths, 
chemical compounds, or physical elements? I think this question is 
parallel to the question whether law is the creature of the state or the 
state the creature of law, or the question whether the world in reality 
consists of material things, ideas, substance and attributes, things in 
relations, events, or atomic facts. The viewpoint of systematic relativism 
suggests that the process of analysis, whether applied to the cosmos, the 
nature of the state, or apple pie, can begin at different points, proceed 
in different directions, use different instruments, and still produce equally 
exhaustive results, with no crumbs left over. 

(2) The Relativity of Proof 

The same viewpoint that suggests that the direction of analysis and 
the location of simplicity and complexity are functions of a contextual 
system, also suggests that the direction of proof, generalization and par- 
ticularization and the location of probability and the a priori are func- 
tions of such a system. 

In the field of deductive proof, systematic relativism asserts only what 
I think we should all maintain, namely, that propositions or theorems 
are proved with reference to assumptions or postulates, and that no 
proof is conclusive if you reject the assumptions, which you can always 
do, logically, though as a moral human being you may find certain 
assumptions indispensable. 

The viewpoint of relativism is equally applicable, I believe, to so- 
called inductive proof. 

To the absolute pluralist induction is a mystery, 17 If the falling of 
apple A is intrinsically and ineluctably a particular, distinct from the 
falling of apple B, then no sum of these particulars can establish a 
general proposition about the falling of apples or about gravity in 

16. Cf. Morris R. Cohen, in "Qualities, Relations, and Things" this Journal (1914) 
pp. 617, 622. "The world of existence is thus a network of relations whose intersec- 
tions are called terms. These termini may be complex or simple, but the simplicity is 
always relative to the system in which they enter. . . . Even the mathematical point 
is not absolutely simple. , . . In line geometry a point is a complex formed by the 
intersection of two lines, and there is no reason for supposing that point geometry is 
more fundamental than line geometry/' 

17. Cf. Russell, op. cit. pp. 221-23. 



But induction is not a mystery if one accepts the relativistic view that 
what is particular is also general in another context. From this stand- 
point, the physicist does not have to traverse the infinite distance from 
the particular to the universal, because he does not start with the 
particular in the first place. He views only those aspects of the universe 
which are common to apples and other material things, namely, such 
universals as mass, velocity, acceleration, weight, shape, color. The 
process of induction is not an addition of particulars but a subtraction 
of universals. It is a process of eliminating irrelevant elements. The 
hypothesis that color or shape or weight influences velocity may be 
experimentally disproved, thus permitting a progressive abstraction in 
what the physicist observes. From the standpoint of systematic relativism, 
then, induction is the process of abstracting from experience the ele- 
ments relevant to a given system and of eliminating elements which are 
not relevant. The so-called assumption of the uniformity of nature is 
nothing more than a recognition of the fact that particularizations which 
may be very important to us as human beings may be quite irrelevant 
to the cosmic process. The assumption that the future will be like the 
past is only a recognition of the fact that the systemic distinction that 
each of us makes at each instant between two segments of time, 
however important it may be to us at the moment, is irrelevant to cer- 
tain cosmic processes which govern us and which, if we are scientifically 
inclined, we can observe. Systematic relativism is, in this sense, a safe- 
guard against the naive assumption that I am the center of the world 
and that Now is the critical moment of history. 

This viewpoint with respect to the relativity of proof throws light, 
I think, on the problem of probability. No fact has, in itself, an assign- 
able probability. It either exists or does not exist. And what is true 
of one fact is true, a thousand times, of a thousand facts. The empirical 
frequency of a certain occurrence is a fact and not a probability. To be 
specific, there is no probability that I as an individual will live another 
ten years. Different insurance companies may assign different degrees of 
probability to this possible event, depending upon whether they classify 
me with respect to age, health, weight, occupation, and heredity, or dis- 
regard one or more of these factors, or weigh the factors differently, 
A degree of probability can be assigned only within a system that selects 
certain elements as relevant, disregards others, and deals with the char- 
acteristics of classes defined by these relevant elements. There is no 
absolute system with which these selective systems can be compared, and 
if there were an absolute system there would be no probability. The 
system which any insurance company adopts may fail The probability 


that any insurance company will fail is itself a risk that a reinsurer may 
take, and this risk will be variously calculated by different reinsurers. 
The human acceptance of a system of selective elements cannot be 
uniquely determined by any criterion of truth, but must inevitably in- 
volve an element of convention or purpose. 

The problem of the a priori is subject, I think, to the same type of 
analysis. Since the notion of the relative a priori has been developed 
with some care in Professor Cohen's Reason and Nature 18 and in 
Professor Lewis's Mind and the World Order, 19 I shall not offer more 
than a summary note of explanation. That is a priori to a system which 
cannot be proved or disproved within the limits of the system but is 
assumed in the development of the system. This assumption may be 
embodied in a postulate or in a definition. I know, a priori, that color 
involves space if I have defined color in such a way that a phenomenon 
not involving space would not be called a color. If I define color in 
some other way, the proposition that color does involve space may be 
provable, capable of disproof, or indeterminate in truth value. I know of 
no material proposition which is a priori for all rational systems, and I am 
inclined to believe that such a proposition does not exist. Of the purely 
logical or analytic a priori I do not speak. 

(j) The Relativity of Classification 

Applied to the notion of class, the viewpoint of systematic relativism 
suggests that classification is relative to context, that no entity contains 
within itself a unique principle of classification. Any entities may be 
grouped together in a class. If certain classes seem more "natural" than 
others this is largely the result of language and habits of thought that 
change with changing cultures and vary in various contexts. Failure to 
recognize the relativity of classification to purpose or system is a fruitful 
source of empty argument. Thus people argue for or against the proposi- 
tion that international law is a kind of law, or that the social sciences 
are sciences, or that man is an animal, as if these were propositions 
with a fixed meaning, true or false, and are continually surprised because 
such arguments never convince their adversaries. Recognition that such 
assertions are merely ordering principles for systematic thinking, in the 

18. Cf. M. R. Cohen, Reason and Nature (1931), pp. 143-46. 

19. Cf. C. I. Lewis, Mind and the World Order (1929), p. 231: . . . "that is a priori 
which we can maintain in the face of all experience, come what will." Again Lewis 
writes: (ibid., p. 303): "That all swans must be birds, does not legislate out of 
existence any possible creature." 



nature of definitions, shifts argument to the level of testing the com- 
parative usefulness for agreed ends of alternative methods of systematiz- 
ing experience. 

(4) The Relativity of Causation 

Applied to the notion of cause, the method of systematic relativism points 
to the plurality of systems in which lines of causation can be traced. 
If the question is asked, in the system of physics, ''What causes the 
periodic rearrangement of these pages?" an answer in terms of my desire 
to get to the next page is quite irrelevant. 

The notion of the relativity of causation throws light, I think, upon 
a central problem of jurisprudence. When we seek to impose a liability 
upon the person who has caused an injury, a science that utterly ignores 
ethics can never fasten responsibility upon any one individual. An event 
in society typically involves antecedent events by many persons, including 
persons no longer alive at the time of the event. If, as a matter of fact, 
we fasten the thread of causation to one person it is because here is 
a point in the myriad strings of historical connectedness where social 
pressure accomplishes some approved social purpose. 20 

The relativity of causation implies the relativity of the accidental. 
The pure accident does not exist. A hurricane may be an accident in 
a social system but not in a system of meteorology. 

If causation is relative to system, the whole problem of chance and 
determinism must be reformulated. Any event is determinate within a 
system that postulates the sufficient conditions of the event, and indeter- 
minate in any other system. The fact that an act of a human being is 
deteVmined in the system of physical motion does not mean that the act 
is determined in another kind of system. No event is in itself determinate 
or indeterminate. 

(5) The Relativity of Individuality 

I think that a good deal of confusion in political life as well as in 
philosophy has been caused by an absolutistic view of individuality. 

20. There is illumination in the comment of Judge Andrews in the case of Patsgraf 
v. LJJR..R. (248 N.Y. 359): "Each cause brings about future events. Without each the 
future would not be the same. Each is proximate in the sense it is essential. But that 
is not what we mean by the word. Nor on the other hand do we mean sole cause. 
There is no such thing. . . . We cannot trace the effect of an act to the end, if end 
there is. Again, however, we may trace it part of the way. . , , This is not logic, It is 
practical politics." 

1 08 


In the system of psychology, or at least in some systems of psychology, 
I am an individual. From the viewpoint of the biology of unicellular 
organisms, I suppose I am a cooperative society of several million mem- 
bers, the membership of which is constantly changing. From the 
sociologist's viewpoint, I suppose I am only a part of a community or 
society, perhaps a part of many concentric or overlapping societies. 

Is it significant to ask whether I am really an individual or a great 
many individuals or only a part of some bigger individual? The thesis 
here advanced would require us to maintain that this question is in- 
valid/* that individuality is relative to system, that any group may be 
an individual from some viewpoint, that any individual may be a 
group from some viewpoint. 

This, of course, is merely an example of what might be called the 
relativity of number to the unit of operation. In its everyday forms this 
relativity is accepted by common sense. A quart is two pints and is at 
the same time a fourth of a gallon. The same liquid thus partakes of 
plurality, unity, and partiality, with reference to different standards. So, 
when the monistic lamb in Professor Strong's philosophic fable, refusing 
to recognize a real distinction between the nutritious and the poisonous, 
told its mother that, after all, the universe is one, the lamb's mother, 
being a thorough-going systematic relativist, replied, "One what?" 22 

What we call a principle of individuation is, in effect, a formula for 
designating units of operation within a rational system. If alternative 
systems are valid, alternative principles of individuation are likewise 

This viewpoint dissolves a good many philosophic problems that seem 
otherwise insoluble. The metaphysical problem of the personality of 
groups which runs through political philosophy and jurisprudence 
vanishes once we recognize that the term "person" may be defined to 
cover various units in the segmentation of human activity. There re- 
mains the question of what definitions are useful for certain purposes, 
but this is no longer a problem of metaphysics. 23 

This notion of the relativity of the individual person or thing sug- 
gests the thought that what is substance in one context may be quality 
or relation in another context. The distinction between essence and 

21. Cf. F. S. Cohen, "What is a Question?" [above, p. 3]. 

22. C. A. Strong, The Wisdom of the Beasts (1921), p. 60 ("The Lamb and its 
Mother"), The answer of the lamb, as reported by Professor Strong, was: "I am not 
quite sure; but if I have correctly understood my illustrious teachers, it is one Lamb." 

23. Cf. John Dewey, "Corporate Personality" in Philosophy and Civilization (1931); 
F. S, Cohen, Ethical Systems and Legal Ideals (1933), pp. 9-16. 

10 9 


attribute, between substance and quality, between entity and relation, 
is, like the distinction between the individual and the society that in- 
cludes the individual or the environment that surrounds the individual, 24 
relative to the contextual system in which the distinction is drawn. 


The method of systematic relativism, applied in the jungles of politics, 
frequently demonstrates that what appear to be bitter differences of 
opinion on practical matters are actually differences of terminology or 
perspective. Rational argument in this situation becomes possible only 
when, through some emotional shift, one party comes to accept the 
postulates and definitions of his adversary and to talk in the same 
system, or when a third party (i.e. a "politician" or "statesman") is found 
who can talk to each of the disputants in his own system and thus offer 
each a practical solution which is what he wanted all along and was 
convinced his adversary did not want, but which, as a matter of fact, 
his adversary does not object to if only it is phrased in the proper way. 
It is the chief purpose of this paper to suggest that a similar process 
of resolution may be applied to philosophical controversies. The prag- 
matic or operational meaning of systematic relativism may be summed 
up in these proposals for dealing with philosophical controversy: 

1. Never assume that a philosophical doctrine is a true-or-false proposi- 
tion. Its significance may lie in its function in organizing inquiry. 

2. Beware of assuming that any particular perspective is pre-eminent 
or that any philosophy is unavoidable or that any truth can be expressed 
in only one language. 

3. Never assume that two philosophers who use the same symbol mean 
the same thing, or that those who make apparently contradictory as- 
sertions really disagree. They may be talking different languages. 

4. In order to determine whether two philosophical doctrines are 
compatible, incompatible, or identical, look for a formula of translation 
by which propositions within one philosophical system may be correlated 
with equivalent propositions in the other. 

24. The "problem of free will" is a product of two absolutistic fallacies: the notion 
that there is an absolute line of distinction between the individual and the environ- 
ment, and the notion that there is a one-way causal relationship between the two. I 
have elsewhere suggested that there is an alternative view: "... the human soul is 
neither the master nor the slave of its environment. The human soul is its environment, 
seen from within/' F. S. Cohen, "The Socialization of Morality" [below, p. 349]. 


Law and Language 

SOME three years ago I had the very great honor of sharing a lecture 
platform with one of the most distinguished anthropologists of America, 
one of the few anthropologists who has grappled with the fundamental 
problem of native property law.* We travelled together to a Protestant 
Church in Philadelphia, where we were to speak on the subject of Indian 
land tenures, and as we entered he said to me: "Here we are, Jew and 
Catholic, going into a Congregational church to speak to a Quaker 
audience on the rights of pagan Indians. Where else but in America could 
this happen?" 

Tonight I feel very much as Father Cooper and I both felt that even- 
ing three years ago. Here I am, a stranger, both to the Roman Law and 
to the Catholic University, graciously invited to speak before this 
seminar. I am moved to repeat Father Cooper's question: "Where but 
in America would one find this hospitality to diversities of tongue and 
creed, this faith in a common humanity that rises above the barriers 
of border and breed and birth?" And it is in that spirit that I should 
like to say my few words tonight about Roman law as an institutional 
manifestation of that faith in humanity that stands above all divisions 
of tongue, creed, and ancestry. I want to speak of the Roman discovery 
that law is more than words and language forms, more than verbal rules. 
I want finally to speak briefly on the bearing of that discovery upon 
contemporary jurisprudence. 

When Dean Brown j- very generously invited me to attend this Semi- 
nar, he explained to me that one of his students in jurisprudence 
was currently engaged in dissecting me, along with some other so-called 

* [Ed. note: Father John Cooper, an outstanding authority on aboriginal land 
tenure in North America, particularly among the Indians of Canada, and a professor 
of anthropology at Catholic University.] 

f [Ed. note: Dr. Brendan F, Brown, Dean of the Catholic University School of 

Unpublished paper presented at the final conference of the Riccobono Seminar in 
Roman Law at Catholic University, Washington, D.C., 1949. 



realists, and I had visions of myself stretched out on a table alongside 
a turkey, or rib roast, being dissected. Dean Brown, being a sensitive 
soul, must have detected a shadow of terror across my countenance and 
immediately, in order to put me at ease, explained that he too was a 
realist, although, he added, a scholastic realist. His words put me at my 
ease. For I have long considered myself a realist, not merely in the 
modern sense of one who accepts the reality of tables and lamb chops 
and other things that quickly pass into dust and oblivion, but also in the 
scholastic or Platonic sense of realism, as one who accepts the reality 
of time, mathematics, injustice, and many other things that one cannot 
eat or break apart with a hatchet. As a realist I have never felt, as do 
some of my contemporaries, that the term "scholastic" is an epithet of 
reproach. If it be true that scholastics once debated how many angels 
could stand on the point of a needle and, as far as I know, we have 
no more reliable authority than Rabelais for that report, I still see no 
great difference between such a discussion and the discussion that some 
of my distinguished colleagues have been carrying on for a good many 
years, over the question of how many sovereigns can stand on the point 
of a divorce. I have never seen an angel or a sovereign or a corporation, 
and I doubt that angels or sovereigns or corporations exist in the way 
that tables and lamb chops exist, but I have seen too many corporate 
deeds and angelic deeds to doubt the reality of corporations or angels. 

The fact is that the schoolmen of the Middle Ages kept intact the 
tenuous threads that link our living thought today to the thought of 
Aristotle, Archimedes, Euclid, Hippocrates, and Justinian. I see about 
me here the echoes, caught in stone, of walls and towers that once de- 
fended the values of the spirit against the attacks of barbarians and 
philistines in an age of ruthless violence. And the mighty men outside 
those walls are dust and ashes now, while the unworldly thoughts of 
the schools live on, and even the shape of the stones that housed these 
medieval scholars has become a living guide to the architects of our day, 

I know that it is fashionable to use the term "casuistry" as a term 
of opprobrium. But actually, aside from the overtones of prejudice, 
casuistry is what we now call the case method. I do hope that before 
he completes his dissection, Dean Brown's student will read my article 
on casuistry in the Encyclopedia of the Social Sciences,* where I de- 
scribe casuistry as the persistent effort to clarify and test abstractions and 
generalities by constant application to concrete cases. And that, I think, 
is also the chief motivation of realistic jurisprudence. 

There is good reason, I think, why a realist in the law, whether 

i. [Above, p. 14], 



scholastic or unscholastic, should feel at home, even among strange terms 
in a sen.inar of Roman law. For realistic jurisprudence, in essence, is 
the idea that rules, principles, and opinions do not exhaust or explain 
actual judicial decisions. And this idea is set forth with great clarity 
in the woiis of Paulus, preserved by Justinian: "Non ex regula jus 
sumatur, sed ex jure quod est regula fiat/' 2 ("Let not the law, or de- 
cision, be derived from a rule, but let the rule, rather, be drawn from 
the law or decision in which it is involved/') 

It is no accident that he who has been called "The Last of the 
Romanists" I am sure an unjust appellation in the light of the work 
of the Riccobono Seminar was also in some sense the founder of the 
modern realistic approach in jurisprudence. I refer, of course, to Rudolph 
von Jhering. Who can forget his account of his visit to the Heaven of 
Legal Concepts, the juristisches Begriffshimmel, where accomplished ju- 
rists split the finest hairs into 999,999 equal parts and press infinite 
meanings out of statutes under a dialectic-hydraulic interpretation press? 
Surely von Jhering's critique of the jurisprudence of concepts gave a 
worthy start to the labors of Holmes, Oliphant, Llewellyn, and even 
Jerome Frank. 

The Roman capacity for realism was not an abstract matter. It carried 
itself into the analysis of every legal concept. Take, for example, the 
problem: What is a contract? You will find most modern authorities 
telling you that a contract at common law is a promise given for 
valuable consideration, or a set of promises, or an agreement or meeting 
of minds. What these definitions all ignore is the simple historical fact 
that the most important common law contracts did not involve promises 
at all, nor did they involve meetings of minds. The fundamental con- 
tract of the early common law is the speciality, which most simply takes 
the form of a deed poll, that is to say, a deed with a smooth-shaved 
edge because there is only one party to it and it does not have to be 
torn apart, like an indenture, to provide two parties each with half of 
a document. Characteristically, the deed poll, or patent, or charter, 
begins with the words: "Sciant praesentes et futuri . . ." words atro- 
ciously mistranslated into the meaningless hodge-podge, "Know all men 
by these presents." But clearly the original formula means: "Know all 
men present, and all in the future," that I, John Doe, have granted and 
conveyed Black Acre to Richard Roe. Richard Roe has paid me, per- 
haps, and I have given him Black Acre, granted to him and his heirs 
forever. There is not a promise in the document, unless it be one implied 
for the sake of preserving a theory. 

2. Dig. 50:17:1. 


This is not the place to analy/e the nineteenth century theory that 
commerce affects only the parties to a contract and that the L w must 
carry out their intentions and promises without regard to auy social 
interest. The Romans had no such superstition to mislead them. For the 
Romans, contract was an obligatio, an obligation, a vincuhm juris, a 
chain of the law, a limitation upon one's legal powers. A limitation of 
present rights, a grant, is as much a vinculum juris as a promise to do 
something in the future. I find in a single line of Justinian's Institutes 
more light on the nature of contract than will be found in half a dozen 
modern textbooks. The line that I recall is the title of one of the chapters 
of the Institutes: "De Quibus Modis re obligatio contrahitur " * 

There you have it: obligatio contrahitur. An obligation, a specific legal 
disability, is contracted as one might contract influenza, or any other 
specific physical disability. A disability, physical or legal, may be con- 
tracted because one indulged in behavior which one regrets, But it is 
not essential that one should have intended or willed the final result. The 
final result of a marriage contract or a contract of employment is im- 
posed by the law, even where the parties sought to escape the conse- 
quences that the law attaches to their acts. Attaching fixed consequences 
to human acts is an essential part of the duty of the state in safeguarding 
interest larger than the interests of the particular contracting parties. 
For half a century our courts failed to see that a sovereign state cannot 
subordinate social policy to the wishes of the contracting parties with- 
out betraying its trust. Today, fortunately, there is increasing aware- 
ness that in contract law, as elsewhere, the common weal is more im- 
portant than the intentions of the parties. The increasing participation 
of the Solicitor General of the United States in private litigation is one 
indication of this return to the realism of the Romans. 

Law, then, to the Roman jurists, is more than verbal rules, more than 
the expressed will of contracting parties. Law is more than language. 

To know the laws, as another great Roman realist, Celsus, said, is not 
merely to grasp their words. It is, rather, to grasp their force and power. 
"Scire leges non hoc est verba earum tenere > sed vim et potestatem" * 
Did Celsus ever dream how right he was? Did he have any idea that 
long after the words of the jurists of his age had ceased to be heard in 
the forurn, the force and power of Roman law would continue to be felt 
in lands of which Celsus and his countrymen had never heard; in nations 
as far removed from Rome as Ecuador and Japan? Could he know that 
two thousand years of technological change would leave unbroken the 

3. Bk. 3, Tit, 14. 

4. t>ig. 1:3: 17. 



frame and pattern of Roman law concepts of man's just dealings with 

We know that conditions of life today in Switzerland and Brazil and 
Japan differ from each other in important respects and differ even more 
egregiously from the conditions which faced the Roman citizen in the 
second and third century. Modern sociology leaves no room for doubt 
as to the importance of these differences of time and place. And yet there 
was in Celsus and in his fellow- jurists a faith in the essential humanity 
of man everywhere and at all times the faith which had engendered the 
Hellenic idea of natural law. There was a faith that in the really im- 
portant relations of man to man, what was said in any form of words 
might be translated again and again into other words and other lan- 
guages without losing its force or its power. And why should it not be 
so? The great masters of Roman law were not all Italians. They were 
Bulgarians like Justinian, or Greeks like Gaius, or Syrians like Ulpian 
and the great Papinian, who preferred death to the defense of an 
emperor's fratricide and commented that it was easier to commit murder 
than to defend it. We may be sure that these Roman jurists spoke with 
many different accents. And what they could translate out of the ways 
and customs and wisdom of their own people and out of their diverse 
traditions into the common tongue of the Empire could be retranslated 
from that tongue into the languages and the thought-ways and the life- 
ways of many nations yet unborn. Out of the jus gentium which was 
the cross-fertilization of the wisdom of many lands and many races would 
come a new, strong, hybrid corn. 

Two thousand years of history have seen the concepts of Roman law 
translated into every language of modern civilization. The common law 
is full of Roman law concepts and maxims, and today, in such American 
jurisdictions as Puerto Rico and Louisiana, we can see the concepts of 
Roman law being translated, case by case, into English and into com- 
mon law, as they have been translated into hundreds of other languages 
and codes down through the centuries. 

For most of humanity, across the centuries, the horizons o sympathy 
are bounded by the reach of our tongues. We are very much like cows 
in that regard. Not only are those who speak a different language looked 
down upon as foreigners, outcasts, barbarians, but even those who speak 
the same language with a different accent are commonly felt to be 
inferior folk. You all recall the conversation between Huckleberry Finn 
and Jim as they drifted down the Mississippi and how patiently Huck 
tried to convince Jim that if a Frenchman said to him "Parlez-vous 
Francais?" it wasn't really necessary for Jim to "bust him over de head." 


You all remember the long argument and Jim's final crushing comeback: 
"Well, den! Dad blame it if a Frenchman is a man, why doan' he talk 
like a man?" 

Now, it is easy to be tolerant of theoretical errors and disagreements, 
especially if you don't think that theory is very important, after all. But 
it is very difficult for men to be tolerant of differences of pronunciation 
and accent. Paint a crow white and other crows will attack it and peck 
it to death. Man rises above this animal heritage of intolerance by slow 
and painful steps. Even children and simple farmers who have had no spe- 
cial training in intolerance are capable of the most intense cruelty towards 
people who come from another neighborhood. In fact, there are some 
sections of our country, otherwise renowned for their hospitality, where 
it is dangerous to travel without police protection if one speaks with 
the wrong kind of accent, or has color reactions different from those of 
the general population, or even if one has Hatfield ancestors in McCoy 
territory, or vice versa. The less-publicized and less demonstrative hos- 
pitality of a great city that opens its arms to pilgrims of all lands, all 
tongues, and all creeds is a much rarer achievement in human history. 
Such a city was Rome and such a city was Byzantium, and it was the 
tolerance of the cosmopolitan city that gave to Roman law a strength 
that would survive all barbarian conquests and civilize every barbarian 

The vision of Celsus of a law that would outlive any form of words 
in which it might be temporarily imprisoned was no other-worldly vision. 
It was realism, through and through. Society could not survive without 
force and power, vim et potestatem, and law as the form of such coercion. 
Not verba, but vis, even vi et armis. Not words but force. And something 
more than force power, potestas. Force we see as the fasces, the sword 
of justice, the man on horseback. But power is something more. How 
much more is hard to say, but in the welter of controversy one thing 
stands out. Those who think that society is ruled by bankers and prop- 
erty owners, those who think we are governed by judges, those who insist 
that the Presidency has become a dictatorship, and those who think we 
are ruled by the chairmen of Congressional committees, all agree on one 
thing: That we are ruled by men who can get off their high horses, take 
off their swords, and sit in chairs. The President is the man who sits in 
front; the possessor, who is nine-tenths of the law, is the man who sits 
behind. Legislative authority emerges from sessions or sittings. The 
judiciary derives its authority from the Bench on which it sits, and so 
does the banker. Royalty owes its power to the fact that a king can sit on 
a chair, the Greek thronos, or throne. And another Greek word for chair, 



cathedra, has given us the ultimate sanctions of spiritual authority. 

The French have a proverb: "L'on peut tout faire avec les baionettes 
sauf s'y asseoir." One can do everything with bayonets except sit on 
them. And government must have a seat. At some point in the struggle 
for power there must be a sitting-down place where the threat of force 
is so clear and so solidly supported by society that the actuality of force 
becomes unnecessary. 

And so, as Celsus saw, law is more than words and more than brute 
force: it is an arrangement for making the impact of social force so clear, 
so predictable, and so widely acceptable and supportable, that the actual 
use of such force may be reduced to a minimum. And ordinarily this end 
can be accomplished only if the law gives to the human beings it serves 
more than it demands of them. We meet here tonight because some 2,400 
years ago the forgotten men of Rome, immigrants and the children of 
immigrants from all of Italy and all the lands of the Mediterranean, 
peddlers, shopkeepers, and skilled workers, engineered one of the great 
revolutions of history. These forgotten men, not being of the First 
Families, had no share in the legal prerogatives of the original Roman 
gentes. And they demanded public, uniform, written rules of law, laws 
which would deal equally with the home-born and the stranger. And 
these rules, engraved in words that could not be erased, or misread, or 
concealed, these Twelve Tables, have stood the test of the centuries well. 
Developed, elaborated, interpreted, but still true to the faith in a com- 
mon humanity, the faith which gave them birth they have become the 
law of most of the civilized world. 

So it was with other stone tablets of a thousand years earlier, which 
have been translated into a thousand tongues unknown on the wild 
desert of Sinai: "The stranger that sojourneth with you shall be unto 
you as the homeborn among you and thou shalt love him as thyself; for 
ye were strangers in the land of Egypt: I am the Lord your God." 6 "Ye 
shall have one manner of law, as well for the stranger as for the home- 
born: For I am the Lord your God." 6 

Do we not find here at the dawn of the great tradition that we call 
the Roman law, and at the dawn of that other great tradition which 
we call the Judeo-Christian ethic, a common perception of this basic 
truth, basic to all liberal civilization as we know it, that righteousness 
is not merely an obligation within the family or the tribe, within the 
circle of a common tongue, but, rather, an obligation which every 
man owes his neighbor, an obligation to which tribal affiliation, ancestry, 

5. Leviticus 19:33. 

6. Leviticus 24:22, 


creed, race, color, and the diversities of human speech are distracting 

Huckleberry Finn and Celsus both appreciated that men might use 
different sounds and still mean the same thing. That appreciation is 
much needed, I think, in contemporary legal philosophy. There is far 
too much ticketing and labeling and pigeon-holing of schools of juris- 
prudence on the basis of language habits and vocabularies. Languages, 
words, frames of reference change. But what was said in any language, 
if it is of universal significance, can be translated into any other lan- 
guage. What Francisco Vitoria, the real father of international law, said 
in 1532 about the injustice of various schemes for depriving the American 
Indian of his lands, is still true and still an eloquent commentary on 
schemes which are being carried on today, particularly in Alaska, by the 
spiritual descendants of Spanish pirates and conquistadores. To be sure, 
Vitoria was called a professor of moral theology instead of being called, 
as he might be today, a professor of legal sociology. But essentially are 
not both moral theology and legal sociology attempts to get beyond dry 
verbal rules and to see issues of justice and injustice in terms of human 
lives and ultimate values? 

Is it not childish to assume that when Aristotle talks about the law 
as reason unaffected by desire, he is talking about the actual decisions 
that judges hand down? Aristotle knew how easy it was for judges to 
become corrupted by the power they exercise. When he talked about 
law as reason unaffected by desire, he was projecting an ideal of judicial 
conduct which, like the ideals of truth in science and of beauty in art, 
would be valid as an idea long after the empire of Aristotle's most 
famous student had crumbled into oblivion. 

Why should we assume, as a distinguished writer on jurisprudence 
does, that when Coke said that the life of the law was reason, and when 
Holmes said that the life of the law was experience, and not logic, they 
must have been contradicting each other? Is it not possible that Coke's 
reason which, as he carefully explained to King James, was not natural 
reason or science, such as the King himself exhibited, but the artificial 
reason acquired by those learned in law, is pretty much the same thing 
that Holmes was talking about when he said that experience was the 
life of the law? Is it not possible that Coke and Holmes were not con- 
tradicting each other at all but, rather, expressing in the languages of 
different ages a common regard for the continuing search of judges into 
the human meaning of the law? 

Why assume, as some contemporary critics of realistic jurisprudence 
assume, that those of us who are interested in discovering precisely 



what judges are doing in various situations are uninterested in the larger 
problem of what judges ought to be doing? Perhaps it is only because 
we are interested in this larger problem that some of us, in the name 
of realism, are trying to achieve a more accurate view of what happens 
to litigants in law suits than one will find in some of our most 
illustrious textbooks. 

A great philosopher has remarked that no two philosophers ever 
quite understand each other. Perhaps it would be true to expand the 
remark and to observe that no two human beings ever quite understand 
each other. Yet, the possibility of world peace, dim though it appears, 
waits upon our progress in this path toward mutual understanding. And 
in this struggle it seems to me that modern logic may reinforce the 
vision of Moses and of Celsus. One of the great contributions of modern 
mathematical logic, and particularly of the logic of systems, as de- 
veloped by my revered teacher, Professor Sheffer of Harvard, is the 
idea of a formula of translation, through which a statement, true 
in one system, may be translated into a statement in another system that 
sounds quite different but that means the same thing. If I proclaim, 
"This house is mine," my neighbor cannot confirm my assertion by 
repeating my words; he must, to confirm my assertion, use the translation 
formula which enables him to say, "This house is not mine." To a 
narrow verbal logic the two statements, torn out of context, may appear 
contradictory. But a more comprehensive logic shows that no proposi- 
tion is true or false in itself, that every proposition depends for its 
meaning on the system of which it is a part. 

Some such idea may help us to avoid the quarrels and confusions 
that arise when we assume that Holmes and Aristotle and Coke and St. 
Thomas all meant the same thing by the word "law" or the word 
"reason," and that therefore two different statements in two different 
mouths using these words must be inconsistent with each other. But it 
is not enough to know that Holmes and Aristotle mean different things 
by law. What is even more important is that we should be able to 
define the variation with precision. If I know the magnetic deviation 
of my compass, it will not lead me into a wrong port. And if all this 
be so, no one language, no one frame of reference can claim a monopoly 
on the truth. 

I yield to no one in my admiration of Jeremy Beruham, as the chief 

architect of most of the great legal reforms of the past century from 

the codification of international law even the words codification and 
international are Benthamite creations to the rationalization of legal 
procedure, workmen's compensation, social security, the humanization 


of the criminal law, and the reform of our prison system. And yet when 
Bentham called the language of natural rights, the language of the Amer- 
ican and French revolutions, "nonsense on stilts/' he was not quite up 
to Huckleberry Finn's level of tolerance. He was still saying with Jim, 
"Dad blame it, if a Frenchman is a man, why doan' he talk like a man." 

I find today in my classes in jurisprudence a regrettable tendency 
on the part of those who think and speak in the language of Hobbes 
and Bentham and Holmes to consider that those who have talked in 
another language, the language of natural right or natural law, have 
nothing worthwhile to say. Any such assumption is isolationist. It cuts 
us off from the wisdom of other ages and other minds and from the 
aid of our natural allies. 

If what Aristotle had to say about law, what St. Thomas, Hobbes, 
Bentham, Austin, and Holmes have had to say about law, was, as I 
believe, worth saying, then the substance of each of these great con- 
tributions to jurisprudence must be capable of translation into every 
other jurisprudential tongue, both the tongues of the present and the 
tongues of the future. For any of us to shut our ears to strange 
accents and to strange vocabularies is to renounce the vision that came 
to us in the dawn of our civilization, in the wilderness of Sinai, and 
a thousand years later in the crowded city of Rome, that as the life 
that is worth living may be lived under any color of skin, so that 
which is worth saying can be said in any language. 

Field Theory and Judicial Logic 

A new concept appears in physics, the most important in- 
vention since Newton's time: the field. It needed great scientific 
imagination to realize that it is not the charges nor the particles 
but the field in the space between the charges and the particles 
which is essential for the description of physical phenomena.* 

Are Lawyers Liars? 

Anyone who has read the statement of facts in a large number of 
briefs of appellants and appellees is likely to conclude that any re- 
semblances between opposing accounts of the same facts are purely 
fortuitous and unintentional. The impression that opposing lawyers 
seldom agree on the facts is strengthened if one listens to opposing 
counsel in almost any trial. Now, as a matter of simple logic, two in- 
consistent statements cannot both be true. At least one must be false. 
And it is always possible that both are false, as, for example, when the 
plaintiff's attorney says the defendant speeded into the zone of the 
accident at sixty miles an hour and the defendant's counsel insists 
his client was jogging along at twenty miles an hour, while, in fact, he 
was moving at forty miles an hour. Thus, a logician may conclude 
that either (i) at least half of our practicing lawyers utter falsehoods 
whenever they open their mouths or fountain pens, or (2) that a 
substantial majority of practicing lawyers utter falsehoods on a sub- 
stantial number of such occasions. If we define a liar as a person who 
frequently utters such falsehoods, 1 it would seem to follow logically 
that most lawyers are liars. 

i. To define a liar as a person who always lies would be to set standards practically 
incapable of human attainment. Even the most confirmed liar is likely to tell the 
truth sometimes. Otherwise, the people he talks to will not believe him and the pur- 
pose of his lying will not be accomplished. 

* Einstein & Infeld, The Evolution of Physics (1938), p. 259. 

Published in Yale Law Journal, 1950. 



How the edifice of justice can be supported by the efforts of liars at 
the bar and ex-liars on the bench is one of the paradoxes of legal logic 
which the man in the street has never solved. The bitter sketch of 
"Two Lawyers" by Daumier still expresses the accepted public view 
of the legal profession. So, too, does the oft-told story of Satan's refusal 
to mend the party wall between Heaven and Hell when it was his 
turn to do so, of St. Peter's fruitless protests and threats to bring suit, 
and of Satan's crushing comeback: "Where do you think you will find 
a lawyer?" 

Of course, lawyers know that the popular opinion on these subjects 
is inaccurate. Lawyers have ample opportunity to know how earnestly 
two litigants will swear to inconsistent accounts of a single event. 
Lawyers thus have special opportunities to learn what many logicians 
have not yet recognized: that truth on earth is a matter of degree, and 
that, whatever may be the case in Heaven, a terrestrial major league 
batting average above .300 is nothing to be sneezed at. 

The difference between the lawyer's and the logician's view of truth 
is worth more attention than it has had from either lawyers or logicians. 

From the standpoint of rigorous logic, a proposition is either true or 
false. There is no middle ground. A statement such as "It is raining," 
which is true at one time and place and not at another, is ambiguous, 
and an ambiguous sentence is not a proposition, though each of its 
possible meanings may constitute a proposition. Indeed, the character- 
istic of being either true or false is commonly utilized in modern logic 
as the defining characteristic of propositions. 

Life, unfortunately, is not so simple. Logicians may define propositions, 
but whether they can find or create propositions is another matter. Even 
if we convince ourselves that there are propositions, it does not neces- 
sarily follow that we can actually create them or find them; we may 
convince ourselves that there is, somewhere, an oldest man on earth, 
without ever being sure who he is. 

One of the greatest modern logicians, Alfred North Whitehead, 
used to say: "We shall meet propositions in Heaven." By this he meant 
that the symbolism of terrestrial life is too fuzzy ever to reach absolute 
precision, so that unambiguousness is an ideal rather than an attain- 
able fact, Every actual humanly constructed sentence has different shades 
of meaning to different readers. This is most likely to be the case in 
fields of controversy where different readers bring different examples, 
contexts, and values to bear on any given word. In any such situation 
a sentence will embody not a single proposition but several propositions 
which are ideally distinguishable. Some of these propositions may be 


true. Some may be false. The relation of true meanings to false mean- 
ings that flow from a single sentence generally involves a complicated 
quantitative distribution pattern. The simple, traditional true-false 
dichotomy is often quite useless. 

Take, for instance, a typical humanly constructed sentence, one which 
has been uttered, down through some 3,000 years, by hundreds of 
millions of human beings of many races, many tongues, and many 

The Lord is my shepherd; I shall not want. 

What sense does it make to ask whether this sentence is true or false? 

Of course, there may be literal-minded readers of the Bible who will 
insist that the sentence has only one "correct" meaning, which is true, 
and that any variant interpretation is simply erroneous. 

There are, no doubt, equally dogmatic individuals who will insist 
that the sentence is simply false. If they are dogmatic atheists, they 
will tell us: "There is no Lord, and therefore He cannot possibly be a 
shepherd." If they are Montana cattlemen, they may add that nobody 
in the sheep business could possibly deserve to bear the name of the 
Lord. Others there are who have outgrown the effort to make God in 
man's image, but still recite these words with full sincerity. To some 
such, the words of the Psalmist mean that the forces of evil are somehow 
self-defeating, that ultimate victory rests with the forces of righteousness, 
that none of us is self-sufficient, that none of us is capable of pro- 
tecting himself against all the dangers that surround us from cradle 
to grave, and that sanity requires a faith in an unseen power that will 
protect us and guide us as a faithful shepherd guides his sheep, seeing 
that their wants are fulfilled. But one who thus translates the words of 
an ancient poet into the context of his own beliefs has no right to assume 
that this is the only context in which those words have significance. He 
will be content to say that they have truth for him. 

This dependence of meaning upon a personal frame of reference is 
something that many of us take for granted when we refuse to argue 
over affirmations of religious faith. May not the same dependence of 
meaning and truth upon varying contexts be found in non-religious 
fields as well, even in the mundane fields which concern lawyers and 
their clients? May we not say, even, that law as, par excellence, the 
field of controversies, is the field in which the imposition of different 
meanings upon the same verbal formula is most characteristic and most 

If anybody asks us whether the first sentence of the Twenty-third 
Psalm is true or false, we may properly conclude that the interrogator 



is lacking in imagination and guilty of the fallacy of misplaced con- 
creteness. That is because we realize that a sentence of this sort (and 
perhaps every other humanly constructed sentence, in greater or lesser 
degree) means many things to many minds. Perhaps, if we look closely 
enough, a sentence never means exactly the same thing to any two 
different people. For no two minds bring the same apperceptive mass 
of understanding and background to bear on the external fact of a 
sound or a series of marks. Indeed, I doubt whether any sentence 
means exactly the same thing to me the first time I hear it that it 
means the tenth time or the hundredth time. Of course, for many practical 
purposes, we are disposed to overlook such variations of meaning. Each 
of us is likely to try to fix on a particular segment of our thinking, 
at a particular time, as "the real meaning" of any sentence. We may 
then consider all other interpretations as more or less serious aberrations. 
Perhaps we may be justified in holding that our own specific under- 
standing of the sentence at a particular time is a proposition, and 
either false or true. But what, then, shall we say of the sentence as a 
social fact, a source of many interpretations, a matrix of many proposi- 
tions? Must we not say that the truth of any assertion is a matter 
of degree, that from certain angles the sentence may give light and that 
at other angles it may obscure more light than it gives? The angle or 
perspective and the context are part of the meaning of any proposition, 
and therefore a part of whatever it is that is true or false. 

The location of words in a context is essential to their meaning and 
truth. The fallacy of simple location in physical space-time has finally 
been superseded in physics. We now realize that the Copernican view 
that the earth moves around the sun and the older Ptolemaic view that 
the sun moves around the earth can both be true, and that for practical 
though not aesthetic or religious purposes the Ptolemaic and Copernican 
astronomies may be used interchangeably. 2 We realize that Euclidean 
and non-Euclidean geometries can both be true. What is a straight line 

2. "The new system had a great influence, for example, on men's general feelings 
regarding their place in the universe. It is certain that this influence did not originate 
from the fact that the new system was encouraging navigation, since for all practical 
purposes (such as navigation) it mattered very little whether the positions of the stars 
were calculated by the geocentric or by the Copernican system. In this respect the 
introduction of the new world system involved only a very slight correction, 

"The influence of the Copernican system on the general feelings of men was not con- 
nected with the fact that it became a tool which simplified the calculation of the orbits 
of the stars, or calculation of some observable phenomena in general. What really 
mattered was quite a different feature of Copernicus' system. In this system the lan- 
guage and pictures used to represent observable facts were completely different from 



in one system may be an ellipse in another system, just as a penny 
may be round in one perspective, oval in a second, and rectangular in 
a third. 

A prosecuting attorney who assumes that policemen are accurate and 
impartial observers of traffic speeds will arrive at one estimate of the 
speed of a defendant charged with reckless driving. The defendant's 
attorney, if he assumes that his client is an honest man and that police- 
men on the witness stand generally exaggerate in order to build up an 
impressive record of convictions, will arrive at another estimate. If each 
honestly gives his views the court will have the benefit of synoptic vision. 
Appreciation of the importance of such synoptic vision is a distinguish- 
ing mark of liberal civilization. To the anthropologist, the tolerance 
that is institutionalized in a judicial system geared to hear two sides 
in every case represents a major step in man's liberation from the 
tyranny of word-magic. If we do not feel that we have to annihilate 
those who say things we do not believe or, what is generally more 
irritating, say things we do believe but say them in strange ways or in 
unfamiliar accents, we are able to conserve our energy for more useful 
purposes. Energy so conserved may produce science, art, baseball, and 
various other substitutes for indiscriminate individualistic slaughter. 

The disagreements of opposing lawyers on statements of simple fact, 
and the even wider disagreements that characterize their views on more 
complicated facts ("opinion" and "law"), call for a more humane and 
social view of truth and meaning than appears in most of the tra- 
ditional logic books. This is not to say that the traditional logic books 
are wrong. It is only to say that so far the logicians, having concen- 
trated their vision on the logical heavens where words continue at rest 
and mean the same thing forever, have not fully explored the imperfect 
efforts of human beings to communicate with each other. But there are 

the language and pictures through which facts were represented by the geocentric 

"The geocentric system formulated its propositions in terms such as, 'The earth is 
at rest while everything else is moving around it.' Copernicus, however, spoke of, 'an 
earth that is moving in a similar way to all the other celestial bodies.' Even if we 
could conclude exactly the same observable facts from both these systems, one differ- 
ence would still remain: The geocentric system formulated its doctrine in a language 
which harmonized with the language used by the people of the Middle Ages to formu- 
late their general feeling towards the Universe. Whereas Copernicus used a completely 
different language, suggesting a completely different feeling, for example a feeling that 
our earth and all the celestial bodies were of equal importance." Philipp Frank, "The 
Position of Einstein's Theory of Relativity in the Evolution of Science," 9 /. of Unified 
Science (Erkenntnis) 170, 171 (1939). 



welcome indications today that logicians are beginning to pay more 
attention to the real world where people seldom say exactly what they 
mean or mean all they say, where no two people ever quite understand 
each other, where the accumulation of different views of the same event 
is the only remedy we have found for fanaticism, and where the logic 
of fiction has a more direct bearing upon everyday discourse than the 
logic of science. 3 

In a certain sense, it is true that lawyers are liars. In the same sense, 
poets, historians, and map-makers are also liars. For it is the function 
of lawyers, poets, historians, and map-makers not to reproduce reality 
but to illumine some aspect of reality, and it always makes for deceit 
to pretend that what is thus illumined is the whole of reality. None of 
us can ever possibly tell the whole truth, though we may conscientiously 
will to do so and ask divine help towards that end. The ancient wisdom 
of our common law recognizes that men are bound to differ in their 
views of fact and law, not because some are honest and others dis- 
honest, but because each of us operates in a value-charged field which 
gives shape and color to whatever we see. The proposition that no man 
should be a judge of his own cause embodies the ancient wisdom that 
only a many-perspectived view of the world can relieve us of the endless 
anarchy of one-eyed vision. 

Thus, it happens that there are implicit in our judicial process certain 
attitudes towards truth and reality which have recently become ex- 
plicit in physical science. The importance of Einstein's special and 
general theories of relativity is not that they make us see that motion 
is relative to an observation post. This was recognized long ago. The 
real importance of Einstein is his development of formulae by which 
many different accounts of the same physical event may be correlated 
with each other, so that from the position and direction of an event in 
any physical system we can calculate its position and direction in any 
other system. 4 Einstein has made it possible for us to say that what is 
reported as a straight line in one system will be reported in another 
system as a curve of a defined form. 

What is needed in law, if law is to become more scientific in the future 

3, See M. R. Cohen, A Preface to Logic (1944), cc. 4, 5; Thouless, How to Think 
Straight (1948). 

4, "Indeed, it is quite enough to know the results obtained by an observer in one 
CS [Coordinate System] to know those obtained by an observer in the other." Einstein 
& Infeld, The Evolution of Physics (1958), p. 16*6. 

"The general theory of relativity attempts to formulate physical laws for all CS/' Id 
at 249. 



than it has been in the past, is a body of learning from which we can 
predict that what looks like a straight story or a straight sale from one 
standpoint will look like a crooked story or a crooked sale from another, 
and from which we can predict the successive "distortions'* that any 
observed social fact will undergo as it passes through different value- 
charged fields in the "world-line" 5 of its history. 

Concretely, if we see either of the following headlines, we should be 
able to predict the other one: 

Wall Street Journal Pravda (Truth) 




Similarly, we should be able to predict that what Justice X will view 
as "judicial protection of fundamental constitutional liberties" will 
be viewed by Justice Y as "federal interference with the constitutional 
freedom of the states to experiment in the solution of their own social 
problems." We should be able to understand how the simple physical 
fact of a man's skull colliding with a policeman's club will be reported 
by the New York Times, the Daily Worker., the attorney for the club, 
the attorney for the skull, and the various judges who will view the 
event at second hand. Given the report of the event recorded by any 
of these observation posts, and knowing the value field of the observa- 
tion post, we should be able to predict the report that will be recorded 
by any other observation post whose value field we can identify. 

That such a form of knowledge is attainable is no empty dream. 
Roughly, crudely, and implicitly, we all have some basis in experience 
for predicting and discounting the ways in which value fields affect the 
reporting of facts. 

One of the simplest shifts of perspective is that which is formalized 
in grammar by the distinction between first, second, and third person. 
Bertrand Russell, in a radio broadcast, under the heading of "con- 
jugation of irregular verbs," offered this illuminating example: 

1. I am firm. 

2. You are obstinate. 

3. He is a pig-headed fool. 

5. The "world-line" of a body, in modern physics, is the series of all its locations in 
space-time. That the earth was between the sun and the moon on a certain day would 
be a point in the series that constitutes the world-line of the earth. 



The New Statesman and Nation recently secured from its readers large 
quantities of similar conjugations, of which the following are typical: 

1. I am righteously indignant. 

2. You are annoyed. 

3. He is making a fuss about nothing. 

1. I have about me something of the subtle, haunting, mysterious 
fragrance of the Orient. 

2. You rather overdo it, dear. 

3. She stinks. 6 

It is unnecessary to multiply examples. The question that confronts 
jurisprudence is whether the practical know-how that enables an experi- 
enced judge to discount bias can be formulated and rendered more 
systematic and less haphazard. Can we do in law what the mathematicians 
and the physicists have done in their more precise domains? Before 
we attempt to answer that question, it may be worth our while to view 
this question as it reappears in two other legal disguises, as the problem 
of precedent and the problem of causation. 

The World-Line of a Precedent 

The problem of judicial precedent has been a focus of legal philosophy 
in America for more than a generation. Those who have criticized our 
courts for obstructing the paths of progress have generally suggested 
that the chief trouble with our judges is that they pay too much 
attention to precedent. Perhaps a stronger case might be made for the 
conclusion that judges pay too little attention to precedent and, there- 
fore, often misread the lessons of the past. Recent studies in legal 
history have made this clear, I think. The courts that invalidated or 
emasculated almost all forms of federal social legislation between 1885 
and 1935 were generally attacked by laymen as slaves of precedent, 
In fact, however, most of the statutes thus invalidated (e.g. those regulat- 
ing wages, hours, prices, and employment contracts) had long and re- 
spectable genealogies reaching back into medieval and ancient law. It 
was the judges who (with the help of Kant and Spencer) were innovating 
in the cause of a new gospel of individualism and it is no accident that 
those judges who, like Holmes, were conservative by nature and good 
legal historians, refused to participate in the fifty years' massacre. 

6. Quoted in Hayakawa, Language in Thought and Action (1949), p. 96, And see 
Thouless, How to Think Straight (1948), p. 4, 



The fact is, however, that the question whether courts should follow 
precedent as much as they do is a wholly misleading question. Con- 
formity to history, as Justice Holmes observed, is only a necessity and not 
a duty. What is true of history in general is equally true of that part 
of legal history that we call judicial precedent. No judge could possibly 
hand down a decision in any case for which a commentator could not 
find a precedent, even if the judge himself failed to find one. To say 
that a decision is unprecedented is to say either (i) that we do not agree 
with the use it makes of the precedents, or (2) that we do not know 
the precedents that might be cited in its support. Each of these state- 
ments tells us a good deal about the person who makes the statement 
but very little about the nature of the decision and its relation to 
the past. In this respect, the statement that a decision is unprecedented 
is very much like the statement that certain philosophical or literary 
works are "original' 1 ; such allegations only measure the allegator's ig- 
norance of history. In short, the real question is not whether judges 
should follow precedent (or logic or the law of gravitation or anything 
else that they cannot help following, whether they know it or not). 7 
It is, rather, how they should follow precedent, that is, how they should 
interpret past cases and how they should draw the lines of similarity 
that connect past cases and present cases. 

One of the unfortunate consequences of the sustained controversy 
over the judicial duty to follow or to ignore precedent in the interest of 
social welfare is the impression that following precedents is a process 
of logic. "Up with logic" and "Down with logic" have become the 
battle slogans in a controversy where logic is essentially neutral, as it 
is in all human controversies. Actually, logic can never establish that 
one case is a precedent for another case. That is because no two cases 
can possibly be alike in all respects. (If they were alike in all respects, 
then, according to the principle of the identity of indiscernibles, they 
would be one case, not two cases.) Any two cases, however selected, 
are alike in some respects. (Otherwise, they would not both be "cases.") 
Whether the respects in which two cases are alike are important is 
a question not of logic but of values. Within one framework of values, 
it makes no difference whether the defendant in a damage suit is a 
helpless widow, a powerful steel corporation, a person of Japanese 
ancestry during a war with Japan, a pugnacious labor leader, or a 
government official. Under such a standard of "impartiality," the differ- 
ences between the parties become irrelevancies. But to a judge who 

7. F. S, Cohen, "The Ethical Basis of Legal Criticism," 41 Yale L.J. 201, 219 (1931); 
Ethical Systems and Legal Ideals (1933), p. 40, 



thinks that differences between defendants ought to be given weight, 
and to a lawyer or observer who thinks that such differences are given 
weight, the differences between the parties in the earlier case and the 
pending case may seriously change or destroy the precedent-value of the 
earlier case. 

Consider, again, the time differential that always intervenes between 
the "precedent" case and the case in which it is cited. Clearly the fact 
that a case has been decided and reported has some social significance. 
Perhaps others have relied on the decision. Perhaps other courts have 
built on it. How they have relied on it and built on it is not a question 
of logic. Often the later interpretation and application of a decision 
are such as may shock its original author. But, for better or worse, a 
ten-year old decision has a weight and shape that did not exist at its 
birth. Its weight and shape embody all sorts of subsequent social 
judgments. And the world that surrounds the ten-year old offspring 
is an older, if not a wiser, world than that into which it was born. 
Contract forms, political forces, and social institutions have changed, 
perceptibly or imperceptibly. Here, again, logic will not suffice to 
determine whether a case is "on all fours" with any case decided ten 
years or a hundred years ago. Whether it is "on all fours" depends upon 
what we think of the years between and of their effect on the cases and 
affairs of men. 

If significant differences between cases may flow even from differences 
in dates of decision and differences in the parties, the fact remains that 
further differences can always be found, as a practical matter, between 
any two cases. There is no precedent that cannot be distinguished away 
if you want to distinguish it. The use of a precedent always implies a 
value judgment, a judgment that similarities between the precedent and 
the following decision are important and that dissimilarities are rela- 
tively unimportant. The application of precedent thus always involves 
a process of selection or discrimination. But one man's pattern of 
selectivity is not the same as another man's. A judge who thinks that 
labor organization ought to be encouraged will rebel when decisions in 
antitrust cases involving capital are invoked against labor. To such a 
judge, the later decision may appear to force the processes of justice 
into a purely mechanical mold based upon a false analogy. But a judge 
who thinks labor organization has gone far enough or too far may view 
the reluctance of his brothers on the bench to decide labor cases In 
accordance with the usual antitrust precedents as proof of their willing- 
ness to subordinate law and logic to mere expediency or demagoguery. 

According to the common view, it is logical to follow precedents but 



illogical to make precedents. But even a slight acquaintance with the 
development of modern logic makes it clear that logic is no respecter 
of age. There is logic in change as well as in constancy, in relativities as 
well as in absolutes. If we give up the old exclusive reliance upon the 
form of the syllogism, we do not have to surrender to impressionism. 
The rapidly developing logic of relations and of systems, which under- 
lies field theory, points to the possibility of a more scientific approach 
to judicial prediction than is offered by some contemporary mystics 
in the law. 

Disagreeing judges and opposing counsel will regularly disagree as 
to whether a precedent is squarely in point, not because either side is 
mistaken in its logical calculations but because the two sides bring to 
bear upon the issue different sets of value judgments. Ordinarily these 
value judgments are not made explicit. To make them explicit would, 
as Holmes has said, deprive judges of "the illusion of certainty which 
makes legal reasoning seem like mathematics." 8 Often the judges who 
make these implicit value judgments are not aware of them and would 
bitterly and honestly resent the imputation that they are allowing 
their own value judgments to enter into the decision of cases. In this 
respect, again, judges are like other human beings. We are none of us 
aware of our own prejudices: The best way to find out whether a man 
is prejudiced against Catholics or Jews or immigrants is not to ask him 
but to analyze his descriptions of events in which Catholics or Jews or 
immigrants appear. One of the most common manifestations of preju- 
dice, for example, is the tendency to mention certain religions or races 
in describing a wrongdoer but not in describing his victim. 

If we found the same events described in two newspapers in the terms 
given in the following columns, we should know something about the 
physical events but also something about the value selectivities of the 
reporters of the events: 

1. Mr. William Bellanca, prom- la. Mr. William Bellanca, prom- 
inent airplane designer, was inent Italian-born airplane de- 
held up last night by an un- signer, was held up last night 
identified Italian gangster. by an unidentified gangster. 

2. Three American workers were sa. Ten native townspeople were 
fired to make room for Jewish given permanent employment 
refugees at the hat factory in by a Jewish refugee in his hat 
Mudville last month. factory in Mudville, and three 

other local residents were given 

8. Collected Legal Papers (1921), p. 126. 


temporary employment pend- 
ing the arrival of members of 
the owner's family who have 
been held in concentration 
camps for seven years. 

The selectivity operation that we execute when we hold up one 
decision as precedent for another decision will, in general, expand the 
force and scope of those decisions that we agree with; at the same time 
it will restrict the force and scope of decisions that we think wrong and 
ill-advised. In dealing with decisions that we approve of we will gen- 
erally, consciously or unconsciously, stress the broad principles of justice 
enunciated in the case. The decisions we disapprove of we may seek 
to restrict to "the facts of the case as it was actually decided," which is 
a politely circuitous way of saying that we would not give the decision 
any weight at all in any later case. 9 But we do not have to go so far 
in order to free ourselves from the incubus of an apparent precedent. 
We are bound to find some points of difference, which will grow in im- 
portance as we reflect on the harm that would be done by ignoring 
these points of difference and applying an old decision to the situation 
now before the court. And so we generally end up our briefs and argu- 
ments as lawyers, or our opinions as judges, with a stronger conviction 
of the justice of our result than we had when we started our search. 

Llewellyn has written of the ways in which the precedent-value of a 
case increases or diminishes, of the "minimum value" and "maximum 
value" of a precedent, and of the techniques for "getting rid of prece- 
dents deemed troublesome . . . and making use of precedents that seem 
helpful." 10 Oliphant has offered the analogy of an infinite pyramid in 
which a case may "stand for" broader or narrower principles depending 
upon how far up or down the ladder of abstraction we move in handling 
the case. 11 Both these analogies are helpful, though they inevitably 
oversimplify the problem. What is important to recognize is that the 
shape of a precedent, as well as its size, will vary with the selectivity- 
grid through which it is viewed. One side of the precedent may grow 
while the opposite side shrinks. And a series of cases which looks like a 
straight line from one value standpoint may look like a very crooked 
stick from another. 

If these variations in the shape and force of a precedent were com- 
pletely unpredictable, law would have all the uncertainty that Jerome 

9. Llewellyn, The Bramble Bush (1930), p. 63. 

10. Id. at 65-66. 

n. Oliphant, "A Return to Stare Decisis" 6 Am, L, School Rev, si*j, !7-i8 (1928), 


Frank thought it had before he became a judge. But the fact is that 
we do know something about the selectivity patterns of most judges 
which shape the line of development of any precedent. In fact a very 
important part of the process of selecting judges is devoted to the elimi- 
nating of judges with disrespectable or unpredictable value patterns. 
When we find a marked judicial shift in value judgments, as in Chief 
Justice Hughes' and Justice Roberts' opinions in the first Labor Board 
cases, 12 we can tell that other precedents in many other fields of law will 
thenceforward cease to be precedents because a new value-attitude has 
been taken (though not expressly formulated) with respect to social 

According to traditional judicial logic, every precedent moves in a 
straight line, imparting its direction to every case that gets in its way. 
In fact, however, we find that the force and direction of a precedent 
vary with the field in which it is observed. We are not now, and probably 
never will be, able to predict the path of a precedent with absolute 
certainty. No more can we always, with complete assurance, predict the 
path of a merely physical object. But at least we know that information 
about the weight of the object and its direction and velocity at a given 
point would be relevant to our prediction. So, too, we know something 
about the relevant factors in plotting the path of a precedent. We know 
that the line of motion of any precedent is subjected to a special pull 
that skews it whenever it passes near a point of high value tension. A 
series of precedents that shows a straight line when the judgments range 
from $1,000 to $100,000 may swerve pretty sharply when a case involves 
a twenty million dollar judgment against a government or other public 
institution that cannot make such a payment without serious public 
repercussions. Precedents that point to the protection of civil liberties 
may suddenly dwindle in times of public hysteria, 13 but after the hysteria 
subsides they may resume their original force and direction. 

In all this interaction of events with surrounding value fields we have 

12. NLRB v. Jones 6* Laughlin Steel Corp., 301 U.S. i (1937); Associated Press v. 
NLRB, 301 U.S. 103 (1937); Washington V. and M. Coach Co. v. NLRB, 301 U.S. 142 

( X 937)- 

13. The attitudes towards Mormonism that prevailed in the i88o's are attitudes that 
most of us can easily recognize as hysterical because we do not share them today. The 
Supreme Court decisions which upheld elimination of Mormons from public office, 
their disfranchisement, and the confiscation of Mormon Church property justified 
these punitive measures on the ground that certain teachings of Mormonism were a 
"nefarious . . . blot on our civilization . . . contrary to the spirit of Christianity." 
Mormon Church v. United States, 136 U.S. i, 49 (1890). Under the impact of this atti- 
tude the Supreme Court maintained that religious freedom comprised only freedom 
of inner beliefs and did not extend to "practices" or "propaganda." Reynolds v. United 


the kind of problem with which field theory in physics has grappled 
for some decades. Is it not conceivable that the forms of analysis that 
have proved useful in the world of physics may likewise prove illum- 
inating in the world of law? 

The guiding thread in Einstein's general theory of relativity is the 
hypothesis "that the space-time structure, though normally flat, would 
become warped in the neighborhood of matter. It was this warping which 
was responsible for the presence of a gravitational field in the ordinary 
sense/' 14 From this assumption, physicists have derived a method of 
procedure: "Thus, when we wish to determine the path and motion, say, 
of a planet we first determine the space-time curvature around the sun 
and we deduce therefrom the lay of the geodesies (straightest lines). The 
world line of the planet will then lie along the geodesies corresponding 
to the initial position and velocity of the planet." 15 

The absolute space of unchanging rules and unmoving precedents 
that characterized traditional jurisprudence is gone. In its place we 
have a "life space" 16 with many "value regions." Whatever passes 
from one region to another, a rule, a precedent, or a statement of 
facts changes its weight, its shape, and its direction in accordance 
with "the lay of the geodesies" of that region. Some of these regions 
we are aware of; others we still need to explore. 

The egocentric distortion we all recognize, at least in others. We 
say that no man should be a judge in his own cause. But we still allow 
judges to decide whether they are themselves prejudiced. And few of us 
have any qualms when we judge ourselves. The facts that we dislike 
we call theories; the theories that we cherish we call facts. And yet, 
because we recognize the egocentric distortion, and are able to laugh at 
it, and to discount it, most of us outside the asylums manage to live in 
a world that is not purely private. In fact, the small-scale distortions 

States, 98 U,S. 145 (1878); Dams v. Beason, 133 U.S. 333 (1890). In other words, legisla- 
tion commanding religious persecution is upheld, so long as it singles out its victims 
by means of some observable fact in their speech, ritual, or conduct, and does not limit 
itself to their private and secret thoughts. F. S. Cohen, "Supreme Court and Religious 
Liberty,'* 4 Jewish Frontier 6 (July, 1937). And note the shift between June si, 1943 and 
December 18, 1944, in the Supreme Court's attitude towards legislation singling out per- 
sons of Japanese ancestry for confinement. See Hirabayashi v, United States, 320 U.S. 
Si (1943); Ex part* Endo, 333 U.S, 283 (1944); and cf. Rostow, "The Japanese American 
CasesA Disaster/* 54 Yale L.J, 489 (1945); F. S. Cohen, "The Civil Rights Report," 
5 ETC. 161 (1948). 

14. D'Abrot, The Decline of Mechanism in Modern Physics (1959), p 8t. 

15. Id. at 85, 

16. Cf. K. Lewin, Principles of Topological Psychology (1956). 



that center about the life space of each individual tend to cancel each 
other in any long-range movement. They are thus less serious, from 
the standpoint of the legal order, than the group distortions, ethnic, 
national, and economic, which reinforce each other and thus powerfully 
affect all large-scale movements in the social world. 

Large-scale social facts cannot be explained in terms of the atomic 
idiosyncrasies and personal prejudices of individuals. Lines of prece- 
dent are large-scale social facts involving large numbers of individual 
judges and litigants. That is why the "belly-ache" theory of judicial 
decisions can never explain how any rule of law comes into being or 
changes in time. And that is why a realistic view of the role of prece- 
dents requires an exploration of group-reinforced value patterns. Such 
an exploration might explain many facts on which the ceremonial 
rules of traditional jurisprudence throw no light for example the fact 
that the judges appointed by a given administration uphold the validity 
of the activity of that administration in not less than ninety-six per 
cent of the cases in which it is challenged. So, too, such an exploration 
might indicate how it happens that when anybody enters the life 
space of a public office, bringing to it a certain momentum and energy, 
the life space of the office will impose its geodesies upon him: he will 
ask for more appropriations, seek increased power for his office, adopt 
certain protective attitudes towards his assistants. At the same time, those 
directions of his activity that are peculiar to himself are likely to cancel 
out against the opposing directions of his successors, colleagues, and 
predecessors in office. Just so, the man who dons the judicial robe with 
the greatest contempt for precedent finds that the pressure of his office- 
space compels him to follow paths that, from outside the office-space, 
once appeared absurd. 

It would be tedious to multiply examples of the ways in which un- 
avowed value patterns particularly group value patterns direct the 
flow of events in the space we call law, It is enough to see that we can 
reject the old idea of straight lines of precedent filling absolute legal 
space, without surrendering to chaos or impressionism. Relativity also 
has its laws, its certainties, and its demanding quests for verifiable fact. 

Causation: Physics and Practical Politics 

Some form of causation is involved in every law suit. For every 
plaintiff claims that somehow the defendant has caused him to suffer 
and for that reason should be subjected to the strong arm o the law. 
One might expect, therefore, that after so many centuries of litigation 



jurists would have a pretty clear idea of what causation really is. The 
fact remains, however, that jurists have ordinarily conceived of "causa- 
tion" as a problem of natural science and have therefore studiously 
refrained from inquiry as to its significance. 

On the other hand, natural scientists have decided in recent years 
that causation has no proper place in their studies, that in fact "cause," 
its Latin progenitor "causa" and its Greek prototype ama, are all 
words borrowed from the law courts, which crept into physics on the 
coat tails of the dignified Stoic theory that the physical world is run 
like a legal system, under "laws of nature." 17 Today physicists are 
pretty generally agreed in rejecting as invalid the explanation that 
gravitation is the "cause" of an apple's downfalling. Gravitation is 
nothing but a highly abstract way of stating the fact that apples and 
many other things do fall. Insofar as the idea of "cause" carries with 
it an anthropomorphic or animistic sense of pushing and pulling, it has 
no proper place in modern physics. Functions and equations have 
displaced "cause and effect" as the basic terms of physical explanation. 
The trend of scientific physics is being reflected today, more or less 
promptly, in every other science. 

Where does this leave the jurist? If "cause" is banished from law, 
will lawsuits be banished also? Or can we refine the concept of causation 
and hold on to it in the law even though all other sciences reject it? 

According to the orthodox view, whether event A is the cause of 
event B is a question of objective fact to which all value judgments are 
irrelevant. What, then, we may ask, is the cause of the injury when a 
plaintiff and his car have been smashed up by defendant's car? The 
location and speed of the defendant's car certainly contributed to the 
accident. So, too, did the location and speed of the plaintiff's car; if 
plaintiff had stayed in bed instead of driving, he would not have been 
hurt. Relevant also are the durability and tensile strength of the two 
cars, the width of the road, the character of the road-surface, the weather, 
and a host of other more or less important facts. How can we possibly 
pick out one of these facts, or any combination of them, and say: 
"This was the cause of the accident?" Certainly there is no rule of 
physics, no rule of engineering, and no rule of logic that will enable us 
to reach such a result. 

What do we actually do? If it turns out that plaintiff was driving on 
the right side of the road and that the defendant was driving on the 
left side of the road, we say that the defendant's driving on the left 
side was the cause of the accident, unless the case arises in England, in 

17. See M. R. Cohen, Th Meaning of Human History (1947), p. 95. 


which case we say that the plaintiff's driving on the right side was the 
cause of the accident. From the standpoint of logic or physics the 
physical collision of the cars had exactly the same physical antecedents 
whether the collision occurred in England or in America. But from the 
standpoint of the law, the judgment of "wrongness" or "carelessness" 
is an essential part of the judgment that attributes the cause of the 
accident to some human act. Without such standards, we should find 
in every accident only the intersection of an infinity of strands of oc- 
currences reaching back into the past without end. 

What we actually do when we look for a legal cause is to pick out of 
this infinity of intersecting strands a useful point at which public 
pressure can be placed. 18 We pick one point rather than another because 
we think the imposition of pressure at that point will tend to bring 
about either a better course of conduct on the part of defendants or a 
fair measure of relief for plaintiffs. What we will take to be the cause 
of an accident, then, is not determined entirely by the objective facts. 
The standards of conduct applied to the situation are an integral part 
of any judgment of legal causation. 

In this, the law does not differ essentially from other social fields. 
When one man finds the cause of high prices in high profits, another in 
high wages, and a third in high taxes, we recognize that three different 
value patterns are being applied to the same set of facts. That, perhaps, 
is why statistical facts and figures seldom sway anybody's viewpoint 
in such a controversy. When we meet a man who feels that all his 
efforts are constantly being thwarted by the connivings and conspiracies 
of other people, we recognize that such a person's ascriptions of causal 
efficacy may be powerfully affected by a private system of values. If he 
tells us that all his failures are the result of Catholic conspiracies, or 
a conspiracy of publishers not to publish his works, we learn a little 
more about his own set of value judgments, even though we may learn 
very little about Catholics or publishers. So, too, if a writer tells us in 
May of 1941 that the cause of World War II is British imperialism 
and tells us, a few weeks later, that the cause of World War II is Nazi 
aggression, we may not learn much about World War II, but we do 
learn something about the "line" of our writer. Indeed we generally 
learn a good deal more about other peoples' value standards from the 

18. "A cause, but not the proximate cause. What we do mean by the word 'proximate' 
is, that because of convenience, of public policy, of a rough sense of justice, the law 
arbitrarily declines to trace a series of events beyond a certain point. This is not 
logic. It is practical politics." Andrews, J., dissenting in Palsgraf v. Long Island 
248 N.Y. 339, 162 NJE. 99 (1928). 


statements they make about causal relations than we do from their 
explicit formulations of value standards. The acquisition of similar 
knowledge about our own unavowed value standards is a more painful 
process. 19 

The intimate dependence of causality judgments upon value standards 
is evident in the work of those historians whose value judgments differ 
from our own. As Morris R. Cohen points out in The Meaning of 
Human History, 

In effect [most historians] select from the vast conglomerate of 
determinants which form the necessary and sufficient conditions of 
a given event some element or elements to which they attach special 
importance and this they call "the cause/* classifying all other ele- 
ments as "conditions." 

Now, though it is perhaps inevitable that historians, like other 
human beings, should see causal relationships through a screen of 
human values that gives importance to some antecedents and rele- 
gates others to obscurity, it is not inevitable that historians should 
fail to recognize that this is what they are doing. Indeed if the role 
which value judgments play in determining our opinions as to his- 
torical causation were more clearly understood, we should have less 
difficulty in understanding how historians who agree on measurable 
facts so often disagree in tracing the causal relations between them; 
how, for instance, the decline of Rome can be attributed by equally 
conscientious and intelligent historians working from a common 
fund of historical data to such diverse factors as the exhaustion of 
soil, the corruption of rulers, the rise of Christianity, spots on the 
sun, and population movements in central Asia. At the same time 
we might be more cautiously skeptical of the moral lessons drawn 
from history by historians who fail to disclose the moral presupposi- 
tions with which they embarked on the task of historical explana- 
tion. For few historians have recognized, as did Darwin, that facts 
which do not fit into our theories make less of an impression on us 
than those that do, or have made a sustained effort, as Darwin did, 

19. "We may often find it easy to indicate approximately on what properties of an 
object our liking or disliking is founded. But we do not realize with the same clearness 
on what characteristics of our own self these attitudes depend. For this reason it is, 
and often remains, so difficult to understand certain valuations of others, for example 
in the field of art or in that of sex/' Kohler, The Place of Value in a World of Facts 
(1938), p. 339- 


to give special note to those facts that fail to fit into preconceived 
patterns. Indeed the field of history is so much more complex than 
that of biology that it is doubtful whether any efforts to make al- 
lowances for our own value systems in the writing of history can 
ever be completely successful. But the historian can make a con- 
tribution to intelligent understanding and to the scientific objectiv- 
ity that transcends national boundaries, racial loyalties, and class 
interests, by setting forth, as a good map-maker does, his own 
magnetic deviations and perspectives. 20 

That judgments of causality vary with the standpoint of the observer 
has come to be widely recognized during recent decades, in scientific, 
legal, and philosophical circles. 21 Consider, for example, the very prac- 
tical question: What is the cause of malaria? In the history of science, 
various answers have been given to this question: 

The ancients found a correlation between exposure to damp air, 
especially at night, and malaria. It was an essential task of biology 
and medical science to ask why these two should be thus connected. 
An intermediate term was found in the bite of certain mosquitoes. 

20. M. R. Cohen, The Meaning of Human History (1947), pp. 113-15. 

21. "Thus the cause of death, for example, will depend upon the principle of selec- 
tion employed by the reporter. It will be moral or legal for one observer, physiologic 
for another. And even to the physician the cause will be heart failure, local infection, 
or some other pathological condition, according to his point of view. Thus certain 
causes appear more often at certain times than at others. Greater attention, for ex- 
ample, is now paid to heart disease, and peritonitis almost disappears because of the 
appearance of appendicitis. So, likewise, if a glass breaks when it falls, I can say that it 
breaks because it was dropped, or because it is made of brittle material, or because it 
slipped from my nervous hand. But any one of these conditions is part of a system or 
perspective. In each perspective the relation is determinate." M. R. Cohen, The Mean- 
ing of Human History (1947), pp. 96-97. 

And see R. B. Haldane, The Reign of Relativity (1921), pp. 121-22: 
"Cause is a very indefinite expression. Externality to the effect is of its essence, 
but its meaning is relative in all cases to the subject-matter. For the housemaid the 
cause of the fire is the match she lights and applies. For the physicist the cause of the 
fire is the conversion of potential into kinetic energy, through the combination of 
carbon atoms with those of oxygen and the formation of oxides in the shape of gases 
which become progressively oxidized. For the judge who is trying a case of arson it 
is the wicked action of the prisoner in the dock. In each case there is a different field 
of inquiry, determined from a different standpoint. But no such field is even approxi- 
mately exhaustive. . . . Thus we see that when we speak of the cause of an event we 
are only picking out what is relevant to the standpoint of a special inquiry, and is 
determined in its scope by the particular concept which our purpose makes us have 
in view." 


But why should the bite of the mosquito produce the given result? 
Again an intermediate term is found in the virus that is injected 
into the organism by the bite. But why should that virus destroy 
the red blood corpuscles? It is obvious that no matter how many 
middle terms are thus interpolated we still have a discrete series, 
and the question why two terms should be causally connected re- 
mains. This is, of course, no objection to a process which extends 
our knowledge even though it never can be absolutely completed. 22 

Clearly, for the sanitary engineer, the existence of untreated swamps is 
the cause of malaria. For the king's attendant with the palm-leaf fans, 
the bite of the mosquito is the only relevant cause. For the pathologist, 
the effect of the malaria virus upon red blood corpuscles is the cause. 
In each case the cause is the point at which effort can be usefully applied. 
At least two great American judges, Benjamin Cardozo and Henry 
Edgerton, have clearly recognized that in law, as elsewhere, judgments 
of causation are essentially relative and purposive. Thus Justice Cardozo, 
after noting the infinity of antecedents that come together in any event 
we seek to explain, observes: 

From this complex web the law picks out now this cause and 
now that one. Thus the same event may have one jural cause when 
it is considered as giving rise to a cause of action upon contract, 
and another when it is considered as giving rise to a cause of action 
for a tort. The law accepts or rejects one or another as it measures 
its own ends and the social benefits or evils of rejection or acceptance. 

A case will point my meaning. A fire occurred at Big Tom, New 
Jersey. The fire exploded dynamite. The explosion by its vibrations 
caused damage to a vessel standing out in the river half a mile 
away. A policy of insurance secured the owner of the vessel against 
loss proximately caused by fire. The court assumed that by the 
law in most jurisdictions the fire would be the jural cause if the ac- 
tion were in tort against a wrongdoer who had negligently spread 
the flames. Indisputably it would if he had acted with intent to 
cause the very damage that resulted. On the other hand, the court 
refused to find that the fire was the jural cause within the meaning 
of the contract. 

The reasoning that led to this conclusion is in close approach to 
Lord Haldane's, though rendition of the judgment preceded by 
some years the publication of his book. "In last analysis," we said, 
"it is something in the minds of men, in the will of the contracting 
parties, and not merely in the physical bond of union between 
ts. M. R. Cohen, The Meaning of Human History (1947), pp. 105-06. 



events, which solves, at least for the jurist, this problem of causa- 
tion. In all this, there is nothing anomalous. Everything in nature 
is cause and effect by turns. For the physicist, one thing is the 
cause; for the jurist, another. Even for the jurist, the same cause is 
alternately proximate and remote as the parties choose to view it. 
A policy provides that the insurer shall not be liable for damage 
caused by the explosion of a boiler. The explosion causes a fire. If 
it were not for the exception in the policy, the fire would be the 
proximate cause of the loss and the explosion the remote one. By 
force of the contract, the explosion becomes proximate. A collision 
occurs at sea and fire supervenes. The fire may be the proximate 
cause and the collision the remote one for the purpose of an action 
on the policy. The collision remains proximate for the purpose of 
suit against the colliding vessel. There is nothing absolute in the 
legal estimate of causation. Proximity and remoteness are relative 
and changing concepts/' 23 

Probably the most precise formulation of the value-orientation that 
is implicit in every judgment of causation is that given by Judge 
Edgerton in his epochal article on "Legal Cause." 24 The painstaking 
analysis of cases and materials in that article exposes the emptiness of 
all efforts to define "cause" or "proximate cause" in terms simply of 
time, space, and mechanics and without reference to values. Judge 
Edgerton's thesis is best summarized in his own words: 

A wrongful act or omission has occurred, a harm has been suf- 
fered. Will the law treat the one as the cause of the other? My 
thesis is that it neither is nor should be possible to extract from the 
cases rules which cover the subject and are definite enough to solve 
cases; that the solution of cases depends upon a balancing of con- 
siderations which tend to show that it is, or is not, reasonable or 
just to treat the act as the cause of the harm that is, upon a bal- 
ancing of conflicting interests, individual and social; that these 
considerations are indefinite in number and value, and incommen- 
surable; that legal cause is justly attachable cause. I believe that, 
while logic is useful in the premises it is inadequate; that intuition 
is necessary and certainty impossible. 

The fact that the rules of legal cause are intended to produce 
a just result, rather than to save time or avoid uncertainty, is em- 
phasized by the attitude of the law towards what may be called 

23. Cardozo, Paradoxes of Legal Science (1928), pp. 83-85. 

24. 72 U. of Pa. L. Rev. 211, 343 (1924), 



alternative causes; i.e. causes each of which, without the con- 
currence of the other, would have been sufficient to produce the 
result. In general, "a defendant's tort cannot be considered a legal 
cause of plaintiff's damage, if that damage would have occurred just 
the same even though the defendant's tort had not been com- 
mitted/' [*] 

But, by exception "where two tort-feasors are simultaneously 
operating independently of each other, and the separate tortious 
act of each is sufficient in and of itself to produce the damaging 
result," each is liable.f 2 ] It would be shocking to our sense of justice 
to relieve two wrongdoers of liability on the ground that both are 

Today it is perhaps no longer necessary to argue that judgments of 
causation in the law are relative and changing. The real question is 
how they change. Can we plot out the ways in which changing judg- 
ments of purpose and value will lead courts to shift the directions in 
which they seek to trace chains of causation? 

It is when we face the problem of how judgments of causality vary 
that the physical analogy of a field of forces becomes helpful. Such an 
analogy may indicate that just as precedents shift in direction when 
they enter a neighborhood of high value tension, so judgments of 
causality will undergo a similar shift in direction. Generally, the 
direction shift, whether of precedent connection or of causal connection, 
will be such as strengthens and reinforces the basic valuations in the 
field. Precedents which support our objectives grow; precedents that 
appear to others to be against us drop away. Causal connections which 
support our objectives are strengthened; those that threaten them drop 
away. Thus, increasing sympathy for the victims of industrial ac- 
cidents will bring about a broadening of the field within which causation 
for such accidents is found in some act of an employer who is able to 
provide some measure of compensation. 25 Similarly, increasing fear 
of Communism (or, in a Communist society, of anti-Communism) will 
expand the field in which responsibility for industrial stoppages and 
breakdowns is ascribed to Communist (or anti-Communist) propaganda. 

All of us, in everyday life, when we attribute causality to anybody or 
anything, do so through a highly selective value-screen. Most of us, 
for example, in thinking about accomplishments of which we are 

[i], Smith, "Legal Cause in Actions of Tort/* 25 fiarv. L. Rev. 303, 31* (191 s). 
[*]. Ibid. 
25. See Charmont, Le$ Transformations du Droit Civil (191$), c. 55. 


particularly proud, attribute the cause of our success to our foresight, 
perseverance, hard work, or other admirable qualities. Even if we are 
too modest to talk aloud in these terms, these are the terms in which we 
generally think. On the other hand, in thinking about our failures, we 
commonly find that they were brought about by some action of third 
parties, some accident of the weather, or something else external to 
ourselves. When we view the works of others, we are more likely to 
attribute their successes to external circumstances such as inherited 
wealth, parental care, educational opportunities, and good fortune in 
health, unless those we are judging are persons whom we particularly 
love or respect. So, too, we are more skeptical towards others than we 
are towards ourselves or our dear friends when it comes to excusing 
failures and misdeeds by attributing them to the intervention of ex- 
ternal causes. Concisely, we may say that "causality" is a value-weighted 
term. The person we admire is viewed as active in the events we admire 
and as external or passive in events we condemn, which are then viewed 
as the product of external circumstance. With persons we despise or 
hate, success is normally attributed to environmental factors for which 
they can claim no credit, and failure is traced to the person judged. 26 

The skewing of causal judgments by high-value and low-value orien- 
tations is particularly noticeable in a society with value standards radi- 
cally different from our own. For example, Communist Russians will 
attribute all the great achievements of the United States to facts for 
which its citizens are not responsible, e.g. supposedly unparalleled 
natural resources, separation by oceans from powerful neighbors, the 
contributions of Europe in man-power and idea-power, the role of Rus- 
sian battleships in preserving the Union and the role of Russian armies 
in saving America from German invasion in the first and second World 
Wars. On the other hand, those aspects of American life which may be 
held up to international contempt (e.g. lynching, racial segregation, or 
backwardness in music or chess) are never linked with external causal 
factors but always attributed to the inherent vices of the American way 
of life. In our own judgments of ourselves an opposite skewing may be 
observed by any impartial observer. 

When two people in a law court blame each other for an accident 
they are simply behaving like human beings. The function of a law 
court is not to eliminate all the personal value-tones that lead individ- 
uals to draw causal lines one way or another but rather to apply a 

26. The shifting lines we draw between an individual and his environment mark 
the outlines of the problem of civil and criminal responsibility. See F. S. Cohen, 
"The Socialization of Morality" [below, p, 337]. 


more comprehensive set of values and to achieve a more comprehensive 
view of the facts as a guide for social action. 

From this analysis a number of inferences can be drawn concerning 
the disposition of actual cases, and by testing such inferences against 
the facts we can hope to illumine the validity of this analysis. Such a 
task must lie beyond the limits of the present essay. But perhaps it is 
significant to formulate the following hypotheses: 

1. The more reprehensible the conduct, the more readily will judges 
find a causal connection between the conduct and the injury com- 
plained of. 27 

2. The more hateful the defendant, the more readily will judges 
find a causal connection between the defendant and the injury 
complained of. 28 

3. A judgment against a highly respected citizen has a larger prece- 
dent value than a judgment against a despised person; con- 
versely, a judgment in favor of a despised person has a larger 
precedent value than one for a pillar of society. 29 

4. A value differential in attitude of judge and jury towards a given 
class will be reflected in differences of judgment as to whether 
individuals of the given class are responsible for the wrongs com- 
plained of. 30 

27. Compare Bacon's statement of the point: 

" 'In jure non remota causa, sed proxima spectatur.' It were infinite for the law to 
judge the causes of causes, and their impulsions one of another; therefore it con- 
tenteth itself with the immediate cause, and judgeth of acts by that, without looking 
to any further degree. . . . This rule faileth in covinous acts, which though they be 
conveyed through many degrees and reaches, yet the law taketh heed to the corrupt 
beginning, and counteth all as one entire act. ... In like manner, this rule holdeth 
not in criminal acts, except they have a full interruption; because when the intention 
is matter of substance and that which the law doth principally behold, there the first 
motive will be principally regarded, and not the last impulsion." Bacon, Maxims of 
the Law, Regula. I, 

28. Consider the probability of securing a fair trial of a murder charge against 
foreign-born anarchist workers by a judge who refers to the defendants before him 
as "those anarchistic bastards." See Fraenkel, The Sacco-Vanzetti Case (1931)' P- 54 2 - 

29. "[O]ur democracy entrusts the task of maintaining its most precious liberties 
to those who are despised and oppressed by their fellow men." F. S. Cohen, "Indian 
Rights and the Federal Courts" 24 Minn. L. Rev, 145, 200 (1940), 

30. Consider, for example, the repeated decisions of juries that the famous financier 
Russell Sage was partly responsible for injury to a visitor whom he used as a shield 
against a bomb, which decisions were repeatedly set aside by judges who could ace no 
connection between the financier's conduct and the injury to his visitor. Latdlaw v. 
Sage, 158 N,Y. 73, 52 N.E. 679 (1899). 




Public Policy vs. The Law 

"Public policy" has been traditionally viewed as an emergency factor 
upon which an attorney may call when the cases and statutes are against 
him, and to which a judge may look when the law has been rendered 
sufficiently unclear by advice of counsel. On the basis of such a view 
of "public policy" a spirited controversy has raged for many decades 
over the issue whether "public policy" is a proper ground for striking 
down a rule of law or a line of precedents. 31 But in reality the issue 
between law and public policy is chiefly rhetorical. Every rule of law, 
every interpretation of a statute, every standard of what a "reasonable 
man" would do or say or believe or approve, every line of precedents, 
every view of what any decided case "stands for," always presupposes 
one view or another as to "public policy." 

What facts in a case are important when the case is being decided, 
and what facts are important after the case has been decided and when 
it is cited as a precedent? These are questions that cannot be answered 
without criteria of importance. And every judgment of importance im- 
plies a judgment of value or public policy. Without judgments of public 
policy there can be no rules, no precedents, but only endless, fathomless, 
systemless, collections of individual cases, each case sufficient to itself 
and bearing no important resemblance to any other case. 

Of course, most judges, like most human beings, see their own views 
of public policy not as policy views but as eternal truth, the spirit of the 
common law, the basic principles of Anglo-American liberty, or, more 
simply, as the law. We see other people's eyes; but we never see our 
own. We see other people's prejudices; our own prejudices we view 
as the teachings of experience. If we ever come to see our own views as 
prejudices, they have, by that token, ceased to be prejudices and have 
become hypotheses to be examined and confirmed or rejected. So it is 
with metaphysics. Judges and non-judges who denounce metaphysics 
do not thereby escape from metaphysics. Nor do they establish the truth 
of their own metaphysical assumptions. All they establish is their un- 
awareness of their own basic assumptions. 

There is a special reason why most judges will not willingly uncover, 
even in the privacy of judicial chambers, their basic valuations. For 

31. An excellent analysis of this controversy is given in Stone, The Province and 
Function of taw (1946), pp. 494-504. 


the custom of the realm and the defense of the status quo require 
that judges should appear to be unsusceptible to the wayward gusts 
of human emotion. The law is supposed to be objective, impersonal, 
and firmly grounded in the indubitable. On the other hand, everybody 
knows especially judges and lawyers and law professors that men's 
views of what is good and bad vary atrociously from place to place 
and from year to year. And so, as Holmes told us many years ago, 

Perhaps one of the reasons why judges do not like to discuss ques- 
tions of policy, or to put a decision in terms upon their views as law- 
makers, is that the moment you leave the path of merely logical 
deduction you lose the illusion of certainty which makes legal 
reasoning seem like mathematics. But the certainty is only an il- 
lusion, nevertheless. 32 

The very considerations which judges most rarely mention, and 
always with an apology, are the secret root from which the law 
draws all the juices of life. I mean, of course, consideration of what 
is expedient in the community concerned. Every important princi- 
ple which is developed by litigation is in fact and at bottom the 
result of more or less definitely understood views of public policy; 
most generally, to be sure, under our practice and traditions, the 
unconscious result of instinctive preferences and inarticulate con- 
victions, but none the less traceable to views of public policy in the 
last analysis. 33 

I think that the judges themselves have failed adequately to 
recognize their duty of weighing considerations of social advantage. 
The duty is inevitable, and the result of the often proclaimed judi- 
cial aversion to deal with such considerations is simply to leave the 
very ground and foundation of judgments inarticulate and often 
unconscious. 34 

Perhaps the judicial blindness that Holmes criticized is really pro- 
tective. Perhaps value judgments which are inarticulate and unconscious 
are less easily criticized than those which are frankly avowed. If this 
be so, then it will be necessary for those who seek to achieve a critical 
and comprehensive view of the law in action to ferret out the judicial 
value patterns that underlie decisions. 

32. "Privilege, Malice and Intent/' 8 Harv. L. Rev. i, 7 (1894); Collected Legal 
Papers (1921), p. 126. 

33. The Common Law (1881), pp. 35-36. 

34. "The Path of the Law/' 10 Haw. L. Rev. 457, 467 (1897); Collected Legal Papers 
(1921), p. 184. 



In that task it is not enough to classify cases. There are always an 
infinite number of ways in which any pile of decisions may be classified. 
Psychoanalysis has not yet produced any useful techniques for predicting 
judicial decisions. The "breakfast theory" of judicial behavior advanced 
by Beccaria almost two hundred years ago as a reason for reducing the 
realm of unbounded judicial discretion, 35 has not yet revealed any 
correlation between bananas or dyspepsia and the law of sales. This 
far, however, we have advanced. The old slot-machine or phonograph 
theory of the judicial role is dead. No thoughtful student of the law 
today denies the role that is played in the judicial process by judicial 
value standards. Not for a good many years has the American public 
accepted a "leader of the bar" as a justice of its Supreme Court. Public 
scrutiny of the social views of each nominee to that court has become 
the rule, and the rule is likely to be extended to all of our high courts. 
It is desirable that the methods by which the value standards of a judge 
are scrutinized shall become more scientific. 

A scientific approach to the analysis of judicial value patterns requires, 
in the first place, that we distinguish between pure judgments of value 
and mixed judgments of value and fact. Pure value judgments, e.g. that 
happiness is an intrinsic good, represent a highly abstract form of thought. 
We may find such judgments in text-books of ethics; almost never do 
we find them explicitly set forth in a judicial opinion. To find a judge's 
value patterns by looking for his explicit judgments of intrinsic value 
is therefore a hopeless quest. 

Ordinarily, value judgments are implicit in opinions which include 
many elements that are not at all dependent upon our ethical views. 
If we think that democracy is preferable to despotism, it is because we 
think that democracy has certain implications and consequences which 
make for a better level of human life than is consistent with despotism. 
But whether any specific consequences actually flow from a democratic 
order is a question of historic fact on which it is possible to gather evi- 
dence that does not depend upon our wishes. This does not mean that 
historical analysis will ever prove the value of any form of government. 
But it may clarify the complex to which we apply a value judgment. 

So, too, when we characterize the behavior of an individual as brave 
or rash, discreet or cowardly, heroic or quixotic, generous or foolish, 
persistent or pig-headed, we have imported into a psychological analysis 
of human conduct elements of moral valuation. 

These value elements can be identified and analyzed only if we adopt 
an operational view of valuation. In such a view, the meaning of a value 

35. Beccaria, Essay on Crimes and Punishment (1764), c. 4. 



standard is to be found in its actual and possible applications. Towards 
such a view of values the field theory of modern physics provides an 
illuminating analogy and guide. Concretely, we can expect to find the 
value standards of a judge in his reactions to day-to-day problems of 
statutory construction, the weight of precedents, standards of "reasonable 
care" or "due process," and causation. We find the value patterns of a 
judge, as of any other human being, in the choices he makes between 
competing interpretations of fact, in the selection of value-charged words 
to describe given facts, and in the implicit and inarticulate premises of 
his arguments* 

The Inarticulate Moral Premise 

Every judicial opinion is, in some sense, an effort to defend or justify 
some decision, actual or possible. The conclusion that a certain decision 
is right can only follow from an argument if the argument includes 
one or more premises as to what is right or wrong. For reasons often 
noted, judges commonly do not make such premises explicit. Neverthe- 
less a logical analysis of any judicial argument can generally uncover 
the suppressed premises. 

Take, for example, the decisions of the United States Supreme Court 
in United States v. Joseph and in United States v. SandovaL Both 
cases involved the question whether the people of the Rio Grande Pueblos 
were or were not Indians. In the former case, the Supreme Court noted 
that "Integrity and virtue among them is fostered and encouraged. . . . 
In short, they are a peaceable, industrious, intelligent, honest, and vir- 
tuous people." The Court concluded that these people were not Indians, 
and therefore not entitled to the protection of federal laws prohibiting 
trespass upon Indian lands. In the Sandoval case, the Court accepted 
evidence supplied by the Bureau of Indian Affairs to the effect that 
the Pueblos indulged in "a ribald system of debauchery," "cruel and 
inhuman punishment" and "immorality and a general laxness in regard 
to their family relations." From these and other similar characterizations 
the Supreme Court concluded that the Pueblo villages are really Indian 
communities after all and that its earlier decision in the Joseph case 
was erroneous. The moral premise underlying both decisions is obvious 
but, for reasons of politeness or otherwise, it was left unexpressed: "In- 
telligent, honest, and virtuous people" cannot be Indians, but debauch- 

36, 94 U.S. 614 (1876), 

37, 231 U,S. 28 (1913). 



ery, cruelty, inhumanity, and immorality are prima facie evidence of 

Word Selection as an Index of Value Judgments * 

All of us, when we communicate with our fellow human beings, are 
continually faced with the necessity of choosing between words similar 
in import but dissimilar in value tone. Shall we, for example, refer to 
the Secretary of Agriculture as a statesman, a politician, or a bureaucrat? 
Each of these terms may refer to exactly the same activities, and so the 
choice of one term over the others does not affect the informative value 
of what we say. Nevertheless, the choice embodies a value attitude. If the 
person to whom we are speaking is sympathetic and receptive, we may 
convey our attitude to him without his knowing how it has been con- 
veyed. On the other hand, if the person to whom we are talking is alerted 
to the human significance of word-selection, he may learn much more 
about the speaker than he learns about the subject of his speech. 

Whether a man speaks of "colored folk" or "Negroes" or "niggers," of 
"Japanese" or "J a P s >" ojf " men and women of Jewish descent" or "Jews" 

or " Kikes," does not alter the factual content of his communication, 

but all who are sensitive to such choices recognize the value standards 
that lie behind them even when the speaker himself does not. 38 Here, 
then, is a ready indicator of value judgments which should be as ap- 
plicable to judges as to any other human beings. 

Cases involving race-value judgments or class-value judgments are par- 
ticularly rich in such unconscious indications of judicial value-attitudes. 
Thus, for example, the pattern of race-values to which the Joseph and 
Sandoval cases point is strongly confirmed by the word-selections in 
statutes and judicial opinions dealing with Indian rights. In many cases, 
for example, the courts will apply to Indians terms that are ordinarily 
applied to animals, thus conveying the impression that the relation of an 
Indian to his land is similar to that of an animal to its habitat and there- 
fore not a subject of enforceable rights. Thus, while a white man "travels' 1 
or "commutes," an Indian (like a buffalo) "roams." A white man may 

38, See Thouless, How to Think Straight (1948), pp. 3-19; Hayakawa, Language in 
Thought and Action (1949), pp. 42-51, 84-92. 

* [Ed. note: Amplified in "The Reconstruction of Hidden Value Judgments: Word 
Choices as Value Indicators" in Symbols and Values, ed. by Lyman Bryson, 1954, 
The essence of this section appears also below, in a more popular form, in "The 
Vocabulary of Prejudice/' p. 429.] 


be of ''mixed ancestry," an Indian (or a cow) is a "mixed breed." Land 
held by a group of white men in accordance with an intricate apportion- 
ment of individual rights is called "corporate" or "partnership" or "fam- 
ily" property; land held by a group of Indians under arrangements of 
equal or greater intricacy is dubbed "communally occupied." 

This system of double talk has become standard patter for all current 
legislative or judicial programs designed to separate the Indian from his 
property. Thus, land from which Indians are excluded is "owned" by 
whites; land from which whites are excluded is "monopolized" by In- 
dians. 39 Governmental taking of land from white men is called "ex- 
propriation"; taking of land from Indians is called "freeing the Indian 
from the reservation" or "abolishing the reservation system." 40 If a 
government repudiates its obligations to a white man we speak of 
"governmental bankruptcy"; if a government repudiates its obligations 
to an Indian, this is commonly referred to as "emancipating the In- 

The greater the value-intensities in a given field the more marked are 
the manifestations of such double talk. Today the Communist movement 
probably offers the finest examples of political double-talk with rapid 
shifts from up-talk to down- talk, or vice versa, in accordance with the 
changing exigencies of politics. Western statesmen and judges, however, 
are not without skill in this domain. 42 For example, it is interesting to 
note how consistently our judges are able to maintain the principle that 
equity will not enjoin a libel. All that is needed is a second vocabulary 
with which to describe those libels that courts wish to enjoin. Thus if 
courts want to enjoin labor unions from publishing disparaging remarks 
about employers they will refer to such publications not as "libels" but 

39. See, for example, the opinion of the Court of Appeals for the Ninth Circuit in 
Hynes v. Grimes Packing Co., 165 323, rev'd, 337 U.S. 86 (1949), and note the 
cumulative effect of using the term "monopoly" or "communal monopoly" twenty-two 
times in describing the claim of an Aleutian Village to municipal ownership of a har- 
bor area that included traditional fishing grounds. In sustaining the attack of the Alaska 
Salmon Industry, Inc., against the native community's claim, the Court of Appeals 
noted that the Alaska Salmon Industry, Inc., had investments of "upwards of seventy 
million dollars'* which were largely dependent upon the packers' continued use of the 
area claimed by the native municipality, and also noted that the native community in- 
cluded only fifty-seven fishermen. 

40. See the speech of Senator Butler in 95 Cong. Rec. 14390 (1949) in support of his 
bill to "emancipate" Indians from their reserved lands, tax exemptions, and other 
treaty rights. 

41. Ibid. 

42. Cf. F. S. Cohen, "Colonialism: A Realistic Approach" [p. 364]. 



rather as "conspiracies" or "boycotts." 43 Such verbal operations reveal 
value judgments of which the judges themselves are often quite unaware. 

Towards a Field Theory of Value 

The course of our inquiry to this point may be briefly summarized. In the 
suppressed moral premises of judicial opinions, in the choices between 
words of different value tones, in the selection, classification, and inter- 
pretation of facts and precedents, and in the tracing of lines of causation, 
we find prime indicators of the value patterns of a judge, a judiciary, or 
a society. The sum of such indicators defines a value field. The definition 
of a value field makes the contents of the field exportable. That is to 
say, if we understand a proposition in the context of its own field we 
can translate the proposition into language that will convey the same 
informational content in any other value field we understand. 

All this is perhaps merely making explicit and formal what most ex- 
perienced judges and many lawyers know as a matter of "hunch" or 
"intuition/' as Underbill Moore pointed out some eighteen years ago. 44 
Yet, it seems to me that there is some value in refining such "hunches" 
and "intuitions" in the light of the achievements of the more advanced 
sciences. 45 Just as the physicist's idea of the uniformity of nature in- 

43. See Note, "The Privilege to Disparage a Non-Competing Business," 30 Col. L. Rev. 
510 (1930). 

44. In the traditional jurisprudence, Underbill Moore pointed out, "the art or science 
of judicial behavior is a field of knowledge complete and self-sufficient, wholly inde- 
pendent of all others and coordinate with them. . . . Such is the lawyer's traditional 
way of thinking of his problems, his data, and his methods. To be sure it is grossly in- 
adequate and filled with misleading notions. But for him it is a by-product of his pro- 
fessional work, seriously regarded on ceremonial occasions only, and never permitted 
to limit his field of vision to less than the whole situation upon which he gives an 
intuitional judgment. However, to the lawyer's rational account can be attributed his 
failure to recognize that his judgments are intuitional and given in inclusive situations 
of many biological and cultural factors ... and his failure even to begin systematically 
to take into account the factors in the situation." Moore & Sussman, "The Lawyer's 
Law," 41 Yale LJ, 566, 569-70 (1932). 

45. Again,' I find instruction in Underbill Moore's protest against the old isolation- 
ism of the law school: "The lawyer's process of institutional judgment is obviously a 
very rough and haphazard approximation of a precise method derived from the pro- 
cedure which has been abstracted and his forecast a rough approximation of the result 
which would be obtained by a special application of that method. . . , One who 
attempts to approach precise method in forecasting the form of judicial behavior 
must seek the aid of workers in many other fields of knowledge. Were he to attempt 
to forecast the behavior of an individual in a situation which includes statutes and 


fluenced the development of Roman and international law, just as the 
evolutionary ideas of Kant, Hegel, Darwin, and Spencer powerfully 
molded the Anglo-American law of the last century, so the developing 
central concept of modern physics is likely to influence the legal and 
ethical thoughts of the next century. Let it not be thought that the 
sketchy suggestions here made towards the application of the field con- 
cept to legal and ethical problems are intended as a call for a new school 
of jurisprudence. There have been too many such calls already. Rather 
does the field concept, which recognizes the limited and relative validity 
of many apparently conflicting views in the practical struggles of the 
law court and the market-place, point to the possibility that many con- 
flicting schools of jurisprudence may all be true and valid in differing 
and limited perspectives or regions. But this possibility, though often 
suggested, 46 is still sufficiently alien to the temper of contemporary con- 
troversy to deserve a few words of explanation. 

The Elephant and the Judicial Problem 

The six blind men of Hindustan who went to see the elephant and, in 
the manner of the House of Lords, delivered six separate opinions on 
the beast, reported respectively (according to the poetic fable) that the 
elephant was something like a wall, a spear, a snake, a tree, a fan, and a 
rope. In much the same fashion a careful historian of legal philosophy, 
having completed his researches into the juridical reflections of thirteen 
philosophers, and having "put aside immediately the attractive thought 
that the fundamental truths of the various philosophies of law should 
be sifted out and then combined into one harmonious whole," gives us 

decisions this would be equally true. The events in the situation which he selects and 
takes into account include events which are the focus of study in anthropology, anthro- 
pogeography, sociology, and psychology, psychiatry and perhaps other biological sci- 
ences. In dealing with each of the selected events, he must call upon those trained in 
the discipline which focuses upon that particular event for the special knowledge and 
techniques which they command. In the application of his method he must rely upon 
the statistician." Id. at 574-6. 

46. I have made the suggestion myself often enough. See "Transcendental Nonsense 
and the Functional Approach" [above, p. 33]; "The Problems of a Functional Juris* 
prudence" [above, p. 77]; "The Relativity of Philosophical Systems and the Method of 
Systematic Relativism" [above, p. 95]; Review of Cairns, Legal Philosophy from Hegel 
to Plato [below, p. 205]. And see M. R. Cohen, "On Absolutisms in Legal Thought," 
84 U. of Pa. L. Rev. 681 (1936), 



the dreary and orthodox picture of thirteen great legal philosophers who 
could not agree even on what it was they were all talking about: 

We have been told by Plato that law is a form of social control, 
an instrument of the good life, the way to the discovery of reality, 
the true reality of the social structure; by Aristotle that it is a rule 
of conduct, a contract, an ideal of reason, a rule of decision, a form 
of order; by Cicero that it is the agreement of reason and nature, the 
distinction between the just and the unjust, a command or prohibi- 
tion; by Aquinas that it is an ordinance of reason for the common 
good, made by him who has care of the community, and promulgated; 
by Bacon that certainty is the prime necessity of law; by Hobbes that 
law is the command of the sovereign; by Spinoza that it is a plan of 
life; by Leibniz that its character is determined by the structure of 
society; by Locke that it is a norm established by the commonwealth; 
by Hume that it is a body of precepts; by Kant that it is a harmoniz- 
ing of wills by means of universal rules in the interests of freeedom; 
by Fichte that it is a relation between human beings; by Hegel that 
it is an unfolding or realizing of the idea of right. 47 

Accepting the rough validity of Mr. Cairns' summaries of philosophical 
insights, is there any reason to suppose that these insights are incom- 
patible, one with the other? Cannot the legal order be at one and the 
same time a "form of social control" (Plato), a "rule of conduct" and a 
''form of order" (Aristotle), a "command or prohibition" (Cicero) of the 
"sovereign" (Hobbes) or the "commonwealth" (Locke); a "plan of life" 
(Spinoza), "determined by the structure of society" (Leibniz); a "body of 
precepts" (Hume); and a "relation between human beings" (Fichte)? 
Even if we all meant exactly the same thing by the word "law," could 
we not subsume law under many broader categories, including those of 
"contract" (Aristotle), "rule of decision" (Aristotle), and a "way to the 
discovery of ... the true reality of the social structure" (Plato)? And 
even if it be true that Plato, Aristotle, Cicero, and Aquinas formulated 
their ideals of law in terms of reason and the good life, while Bacon 
stressed the need for certainty, and Kant and Hegel expressed an his- 
torical ideal of legal evolution towards universal justice and freedom, 
cannot all these views illuminate the possible goods achievable through 
the law? Why should we fall prey to the monolithic fallacy that only 
those who use a prescribed set of words can attain salvation? 

If we view philosophy, including jurisprudence, not as a set of proposi- 

47. Cairns, Legal Philosophy from Plato to Hegel (1949), p. 556. 



tions but as a way of understanding, we may say that one philosophy is 
superior to another if it achieves a greater degree of generality so that 
it can include other philosophies as special cases within a larger frame- 
work of convergent perspectives. Recognition of the relativity of defini- 
tions permits the establishment of a family of perspectives (e.g. Euclidean, 
Riemannian, and Lobachewskian geometries). 48 A comprehensive legal 
philosophy can find room for the insights of many different thinkers. 

Legal philosophy is not a bad play in which each actor clears the stage 
by killing off his predecessors. Rather is legal philosophy, like philos- 
ophy generally, a great cooperative exploration of possible perspectives 
(Weltanschauungen) through which life's many-faceted problems can be 
viewed. 49 Progress in legal philosophy does not depend upon rejection 
of the insights that came to Plato and Aristotle, any more than progress 
in poetry depends upon rejection of Homer, or progress in music upon 
contempt for Bach and Beethoven. Nor is it necessary to assume, in the 
fashion popularized by Hegel and Pound, that every "school" (perish 
the word!) of jurisprudence supersedes its predecessors. The history of 
legal philosophy is not, as some of Pound's writings have suggested, a sad 
history of successive errors, each thesis producing, in Hegelian-Marxian 
fashion, its own antithesis and destruction, until, by a series of stages, 
we come to the ultimate product of the juristic mind, sociological juris- 
prudence, after which anything different must be considered as one of 
time's typographical errors. 

More tolerance may give us more truth. The house of jurisprudence 
has many mansions. Of law and the legal order many questions may be 
asked. The seekers after "natural law," who have tried to formulate in 
legal patterns the most general needs of human society, are not con- 
tradicted or displaced when men turn to inquire into the historical forces 
that produce diverse legal systems in different lands and epochs. Those 
who have given us the logical analysis of legal terms that goes by the 
name of analytical jurisprudence never denied the role of legal sociology 
in exploring the social sources of legal orders and disorders, Indeed, 
the great exponents of analytical jurisprudence, Austin, Bentham, and 
Holmes, were precisely the men who called most cogently for scientific 
inquiry into the social context and consequences of law. Those who have 

48, The most comprehensive statement of the relativity of systems that I know of is 
to be found In the brief paper of Henry M. Sheffer on "Notational Relativity" in 
Proceedings of the Sixth International Congress of Philosophy (1927), pp. 848-5 1 - 

49. The conception of philosophy here stated I have attempted to develop more 
fully in "The Relativity of Philosophical Systems and the Method of Systematic Rela- 
tivism" [above, p, 95]. 


earned the name of "realists" by drawing clear distinctions between the 
law that is and the law that ought to be do not obstruct efforts at social 
reform by their distinction . Rather, each line of exploration is likely to 
disclose landmarks which will prove of value to other explorers moving 
in different directions and starting from different approaches. 

^ Wilmon Sheldon has acutely observed that philosophers are generally 
right in what they affirm of their own vision and generally wrong in what 
they deny of the vision of others. Now it may be true that denying the 
vision of others adds controversy to the spice of life and thus draws at- 
tention to important views that would otherwise fail to attract serious 
consideration. And certainly it is only natural for proponents of new 
thoughts, and even more natural for the camp-followers of original 
thinkers, to claim for these thoughts dominion over the universe of ideas. 
But a saner perspective shows that no philosophical or jurisprudential 
doctrine has ever filled the space of our intellectual universe, and that the 
products of human thinking across a hundred centuries, all together, 
illuminate only a few of the darker corners of the world we seek to under- 
stand. It is the part of wisdom, in jurisprudence, as in science and phi- 
losophy generally, to avoid extravagant claims and to give those on whose 
thinking we build as much respect as we hope to deserve from those who 
come after us. 

A synoptic vision which can find value in many perspectives is not to 
be confused with mushy-minded scissors-and-paste eclecticism. Stringing 
together the views of many men who followed divergent paths is a fruit- 
less enterprise, productive only of a sense of complete futility and con- 
fusion. If the six blind men of Hindustan who reported on the elephant 
had each noted the direction of his approach and the point at which he 
made contact with the beast, the six reports might have been systemati- 
cally coordinated and a correct, though incomplete, account of the 
animal might have emerged. So, too, if we took account of the different 
perspectives from which legal philosophers have approached the prob- 
lem of the nature of law, we should not only be in a better position to 
appraise each of their contributions but we should be able to systematize 
their various insights and perhaps emerge with a more comprehensive, 
synoptic vision of the legal order than any past generation has enjoyed. 

The judge who understands how two lawyers can disagree on the ele- 
mentary facts of a simple case, why each lawyer thinks the other's prec- 
edents are not in point, and how they can differ even in their causal 
judgments, may achieve a higher level of understanding than the most 
brilliant of advocates. Similarly, the vision of legal philosophy as a family 

50. See the incisive study of Garlan, Legal Realism and Justice (1941). 



of possible perspectives upon the legal order may help us to achieve a 
broader and deeper understanding than is attained by even the most 
brilliant of jurisprudential advocates. 

The systematization of possible logical systems outlined by Sheffer 51 
points to the possibility of a systematization of jurisprudential systems. 
The difficulties in such a task are serious. But if we face the difficulties 
resolutely, none of them appears insuperable. 

The Inarticulate Value Judgments of Legal Philosophers 

The first difficulty in systematizing juristic perspectives lies in the fact 
that legal philosophers, like judges and human beings generally, do not 
ordinarily make explicit their own purposes or the value patterns out of 
which their purposes emerge. It therefore becomes necessary for those of 
us who seek to locate the perspective of Hobbes, Spinoza, Locke, or Kant, 
for example, within a more comprehensive family of perspectives to 
understand what these men were driving at when they put forward their 
very different conceptions of law. If we appreciate the evils of civil war- 
fare and anarchy which Hobbes experienced and portrayed so vividly, 
and if we consider his analysis of law and sovereignty as a persistent in- 
quiry into the ways of avoiding these evils, we can hardly be satisfied 
with the fashionable practice of dumping Hobbes into a dustbin marked 
"defenders of despotism." For the evils that Hobbes saw are still before 
us, and though his analysis, as developed by Bentham, Austin, and 
Holmes, does not answer all juridical problems, it must be a part of any 
comprehensive view of law and the world order. 

That Spinoza and his follower Locke were more concerned than Hobbes 
with the evils of tyranny and anxious to establish realms of civil liberty 
which demand respect even from governments gives us, who are the heirs 
of Spinoza and Locke, as well as of Hobbes, the wherewithal to balance 
the needs of order and the needs of freedom in the difficult social prob- 
lems that face us today. 

Even the forbidding formalism of Kant comes to make practical sense 
if we appreciate Kant's concern with a problem which he saw more clearly 
a century and a half ago than many of our contemporary statesmen do 
today: the problem of how men pursuing radically different social goals 
and capable of destroying each other with the weapons of modern science 
can possibly evolve a pattern of living together in mutual respect, a pat- 

51. See note 48 supra. 



tern more fundamental than any of the things that mark off nation from 
nation, class from class, and man from man. 52 

The Relativity of Definitions 

Among the difficulties that stand in the way of a comprehensive view 
of the legal order is the naive view of definitions as propositions which 
are true or false. All of the endless arguments as to whether international 
law is really law, whether an unenforced statute is really law, etc., depend 
for their continuance upon the notion that only one definition of law can 
be correct. Once we recognize that a definition is, strictly speaking, neither 
true nor false but rather a resolution to use language in a certain way, 53 
we are able to pass the only judgment that ever needs to be passed on a 
definition, a judgment of utility or inutility. We can then recognize that 
Holmes' definition of law as the way courts decide cases is an instrument 
of tremendous value for the practicing lawyer or for any critical observer 
of the role played by courts in modern civilization. On the other hand, we 
may frankly admit that the definition has very slight utility to an an- 
thropologist investigating the ways in which Eskimos deal with murder 
or divorce. Clarity requires not that all of us forever adhere to a single 
definition but that we make clear what definition of law we are using in 
any given context, so that what we say can be fairly translated into other 
people's universes of discourse. 

The Theory of Translation, and the Relativity of Nonsense 

The true significance of Einstein's general theory of relativity, as we 
have noted, 54 is not that it calls attention to the long-recognized diversity 
of physical perspectives, but that it makes possible a translation from any 
perspective into any other perspective. 

Can we translate a thought from one social perspective to another? 

Certainly we try to do this whenever we translate from one language 
to another. Sometimes we succeed. When we fail, it is often because we 

52. I think the human objectives of Kant's juridical quest become clearest in his 
Idea of a Universal History from a Cosmopolitical Point of View (1784) and his Essay 
on Perpetual Peace (1795). See Kant's Principles of Politics (Hastie ed., 1891). 

53. See F. S. Cohen, "Transcendental Nonsense and the Functional Approach" 
[above, pp. 33, 61-62]; M. R. Cohen, "On Absolutisms in Legal Thought," 84 
U. of Pa, L. Rev. 681 (1936). 

54. See note 4 supra. 



forget that a language embodies the history of a people's thinking and 
that different people have partitioned the world in different ways. 

Mark Twain, when he saw what French translators had done to his 
Jumping Frog story, was moved to words of despair: "When I say, 'Well, 
I don't see no p'ints about that frog that's any better'n any other frog/ 
is it kind, is it just, for this Frenchman to try to make it appear that I 
said, 'Eh bien! I no saw not that that frog had nothing of better than each 
frog'? I have no heart to write more. I never felt so about anything be- 
fore." 55 Every lawyer who has seen his views of the law or the facts of a 
case restated or summarized by a judge who does not agree with them 
knows how Mark Twain felt. 

Of course, some translators do better than others. A particularly fine 
performance was given a few years ago at a labor convention in El Paso 
attended by labor delegates from both sides of the Rio Grande. Those 
from the north side of the river made matter-of-fact speeches in English 
about wage increases and the reduction of working hours. Those from 
across the stream made impassioned speeches in Spanish about the role 
of labor unions in the social revolution. The translator was equal to the 
occasion. All the English speeches, when translated into Spanish, were 
about the social revolution, and all the Spanish speeches, when translated 
into English were about hours and wages. Mutual appreciation and 
understanding grew. Bonds of harmony were established that would cer- 
tainly have been smashed if Mark Twain's Jumping Frog translator had 
sneaked into the El Paso convention. 

Only in mathematics do we find perfect translations the sort of thing 
that enables us to translate any proposition about a straight line in 
Euclidean geometry into an equivalent proposition about a curve in 
Riemannian geometry. But outside of mathematics, though we live in a 
world of imperfections, some imperfections are worse than others. Those 
of us who take our law in realistic doses are less likely to misunderstand 
writers on natural law if we translate their propositions about "law" into 
equivalent propositions about "legal ideals." Operating with such formu- 
lae of translation law students who have been prone to distrust all dis- 
course written in unfamiliar terms are sometimes amazed to learn how 
much good sense was devoted centuries ago to some of the problems that 
still trouble us. 

As yet this sort of translation among the different tongues of juris- 
prudence is mostly in the inarticulate stage of "hunch" and "intuition." 

55. Mark Twain, The Family Mark Twain (1935), p. 1080 ("The Jumping Frog: In 
English. Then in French. Then clawed back into a civilized language once more by 
patient, unremunerated toil.") 


The achievements of modern mathematics and physics, however, give 
ground for hoping that we shall some day achieve a powerful new or- 
ganon for mutual understanding a theory of translation. Until that day 
comes, we may do well to remember that no two philosophers and no 
two jurists can ever contradict each other unless they are talking about the 
same thing, and that there is no reason to believe that those who use the 
same words necessarily mean the same things. In fact, I find it to be a 
fair working assumption that when a legal philosopher says something 
that I recognize to be absurd, the statement probably meant something 
different to him than it means to me. As an appendix to a theory of 
translation we need a doctrine of the relativity of nonsense. 

Until mathematicians become lawyers or lawyers become mathemati- 
cians, we may at least cultivate the spirit of tolerance which begins by 
recognizing that what is worth saying can be said in any language. 

Judicial Ethics 

MY ROLE in this symposium is a modest one: it is to clear the ring for 
the feature fight of the program between Dean Brown and Professor 
Hartman. I am to sweep away some of the rubbish in the ring that often 
gets in the way of a clean battle on issues of ethics. I think the most 
serious rubbish that needs to be swept away is the widely prevailing no- 
tion that ethics is something off in the clouds, or off in some never-never 
land of Utopia, something uncertain and subjective, whereas the law is 
something that 'is very definite, clear, hard, here and now. Of course, if 
that were true, there would be no point in trying to apply ethical doc- 
trines to actual cases. 

That the teachings of ethics can and should be applied to actual cases 
is not a novel idea. It was urged years ago by an illustrious law teacher 
and judge. Speaking of ethical doctrine, he commented: "It is not in 
heaven, that thou shouldest say, Who shall go up for us to heaven, and 
bring it unto us, and make us to hear it, that we may do it? Neither is it 
beyond the sea, that thou shouldest say, Who shall go over the sea for 
us, and bring it unto us, and make us to hear it, that we may do it? But 
the word is very nigh unto thee, in thy mouth, and in thy heart, that 
ihou mayest do it." 

In line with this admonition of the illustrious teacher whose words I 
quote, the participants in this symposium have agreed to talk about things 
that are here, in our hearts, before us, and close at hand, and not entirely 
in some Utopia or heaven of abstractions. We all agree on one basic 
point: that whatever else the theory of value or ethics may be, it should 
at least be a criticism of things that happen day after day in our courts 
and in our legislatures, as well as in the privacy of our own thoughts. 

The case of Oleff v. Hodapp, 1 provides us with a fair test of this hy- 

i. 129 Ohio St. 432, 195 N.E. 838 (1935)- 

Delivered at symposium on "Ethical Values and the Law in Action" at the College of 
Law, Ohio State University, 1950. Other speakers were: Dr. Brendan F. Brown, Dean 
of the School of Law, Catholic University, and Dr. Robert S. Hartman, Professor 
of Philosophy, Ohio State University. Published in Ohio State Law Journal, 1951. 



pothesis of the universal applicability of ethical judgments or ethical 
values. In that case a man named Tego Miovanis had a joint bank ac- 
count with his uncle, Apostol Miovanis. Each depositor had unlimited 
authority to withdraw funds. Apparently Tego was afraid that this un- 
limited authority might be abused by his uncle, and so he removed the 
uncle from this mortal scene. The Ohio Court had to decide whether as 
a result of the murder, the joint deposit now belonged exclusively to the 
murderer, or whether the heirs or representatives of the murderee con- 
tinued to have an interest in the joint deposit. The Court decided, by a 
majority vote, that after the murder the bank account belonged com- 
pletely and exclusively to the murderer. Passing over for the moment the 
question of the correctness or incorrectness of that decision, let us try to 
understand what it was that the Court thought it was doing when it 
reached that decision. I quote from what the Court said it was doing: 

We are not subscribing to the righteousness of Tego's legal status; 
but this is a court of law and not a theological institution. . . . 
Property cannot be taken from an individual who is legally entitled 
to it because he violates a public policy. 2 Property rights are too 
sacred to be subjected to a danger of that character. We experience 
no satisfaction in holding that Tego is entitled to this account; but 
that is the law, and we must so find. 3 

There are two things about this opinion that are particularly interest- 
ing. One is the Court's statement that "this is a court of law and not a 
theological institution." The second is the Court's statement that "prop- 
erty rights are too sacred" to be subjected to certain dangers that would 
follow if the courts allowed considerations of "righteousness" or "public 
policy" to influence decisions on property rights. Property rights, we are 
told, are too sacred. Apparently, if property rights were less sacred, or if 
the right to life were more sacred, the Court might have decided the case 
against the murderer Tego and in favor of the representatives of the 
murdered uncle. 

This question of the comparative sacredness or holiness of different 
rights is, I think, one of the most important questions that theological 
institutions have been considering for a good many years. It seems to me 
that this question of whether one property right, or civil right, or human 
right is more or less sacred than another is a very important part of 
theology. Why, then, should the Ohio Supreme Court insist that it is not 

2. Note the delicacy of the court's reference to murder. 

3, 129 Ohio St. at 438, 195 N.E. at 841. 



a theological institution when it passes upon the relative sacredness of 
different rights? 

Before we consider that question further, a few words are in order 
about a case very similar to the Oleff case, disposed of about two hundred 
years ago, the so-called Highwaymen's Case. Modern research has shown 
that this case was not invented by a law professor who wanted to keep 
his students on the straight and narrow path, but apparently was a real 
case. 4 In this case, one highwayman brought suit against his associate for 
a fair division of the booty. The case was very skillfully pleaded; the bill 
of complaint does not recite that the plaintiff was a highwayman, but 
merely alleges that there was a mutual partnership, that "the plaintiff 
was skilled in dealing in several sorts of commodities," that the parties 
had, "proceeded jointly in the said dealings with good success on Houn- 
slow Heath, where they dealt with a gentleman for a gold watch," and 
then further recounts how they dealt with several other gentlemen for 
divers watches, rings, swords, canes, hats, cloaks, horses, bridles, saddles, 
and other things of the value of about 2,000 pounds. Finally the com- 
plaint recites that the defendant refused to abide by the partnership agree- 
ment to divide the swag evenly. 

The plaintiff was not successful in the case. Apparently the property 
rights and contract rights of the plaintiff enjoyed a lesser degree of sacred- 
ness in the Court of Exchequer in 1725 than they would enjoy before the 
courts of Ohio today. At any rate, the Court of Exchequer ordered the 
tipstaff to attach the bodies of the plaintiff's solicitors. They were fined 50 
pounds each and committed to the custody of the Warden of the Fleet 
pending payment of the fines. One of the solicitors was thereafter trans- 
ported, and apparently founded one of the First Families of Virginia. At 
that he did rather better than did the defendant and the plaintiff, who 
were both hanged. I suppose that the Ohio Supreme Court would con- 
sider that this was a rather theological disposition of the case. 

These two decisions are both significant because they indicate two 
different approaches to the question of how far a court of law may prop- 
erly look into questions of ethics, or public policy, or theology. 

The approaches that are reflected in these two cases are further il- 
luminated in the third case on our agenda, the case of the Northwest 
Shoshone. 5 It seems that before the talented but unfortunate solicitor in 
the Highwayman's Case was transported to North America, this country 
was claimed by Indians who thought they owned it. Ever since the arrival 
of the first white immigrants, they have been devoting some of their 

4. See Everet v. Williams (1725), 9 -ft- Re . 197 (1893). 

5. Northwestern Bands of Shoskone Indians v, United States, 3*4 XLS. 535 (1045)- 


finest legal talents to discovering defects in these Indian titles and, in 
that way, devising justifications for the removal of land, minerals, and 
timber from Indian ownership to white ownership, in the interest of 
progress. One of the most brilliant and ingenious justifications of this 
process is that which is given by Justice Jackson in his concurring opinion 
in this Northwest Shoshone case. He advances the theory that Indians 
were really communists, who did not understand or appreciate property 
rights. Ownership of land, he says, "meant no more to them than . . . 
sunlight and the west wind, and the feel of spring in the air. Acquisitive- 
ness, which develops a law of real property, is an accomplishment only 
of the civilized." It follows, then, that the United States being civilized, 
is under no legal obligation to pay Indians when it takes away their 
homes, their timber, their fisheries, their water power, or anything else 
that might be needed for railroads, canneries, pulp companies, or other 
progressive organizations that appreciate property rights. In advancing 
this theory that civilized people have the right to relieve less civilized 
people of their possessions, Justice Jackson insists that the moral and the 
legal have nothing to do with each other. He says specifically, referring to 
moral deserts and legal rights, ". . . we do not mean to leave the impres- 
sion the two have any relation to each other." 6 Justice Jackson might 
very well have said what the Ohio Supreme Court said in the Oleff case: 
"This is a court of law and not a theological institution." 

In fact, however, the same question that Justice Jackson was consider- 
ing had been referred by government officials some years earlier to a 
theological institution. The question whether Indian titles were good 
against the government was referred to a professor of moral theology at 
the University of Salamanca in 1532 by the Spanish Crown, which was 
naturally concerned about the relative rights of the Crown and the In- 
dians with respect to lands of the New World. 

Professor Vitoria considered the sociological facts of the situation. He 
considered the sinfulness of the life of the Indians prior to the coming 
of the Spaniards. He considered the fact that Spain had discovered and 
explored the New World under a special grant of the Pope. He con- 
sidered all the general facts that Justice Jackson considered, and came to 
the conclusion that the relative ignorance and sinfulness of the Indians 
could not impair their title to their property. He concluded that the 
Spaniards' discovery of the Indians did not give the Spaniards any right 
to Indian property any more than the Indians' discovery of the Span- 
iards gave the Indians a right to Spanish property. And finally he reached 
the conclusion, a rather courageous conclusion for a professor of moral 

d. Id. at 358. 



theology in the University of Salamanca to reach, that since the Pope's 
authority was purely spiritual, and limited to those that acknowledged 
his spiritual jurisdiction, the Pope could not, even if he wanted to, bestow 
any title to land upon the Spanish Crown or any other crown, and the 
only title to land that could be acquired by the Crown would have to be 
by way of agreement or treaty with the Indians concerned. 7 

If this question of the right of the powerful to take from the weak 
was properly a theological question (as I think it was), was it not just 
as theological when Justice Jackson answered it in his way as it was when 
Professor Francisco Vitoria answered it 400 years earlier, in his way? 

All through the cases that have been mentioned so far runs the basic 
question whether the acquisition of wealth by superior force establishes 
a right to legal protection of such acquisitions. Whichever way you an- 
swer this question, whether you answer that might makes right, or an- 
swer it the other way, you are answering a basic question of ethics, or 
theology, or whatever else you want to call the study of values, of good 
and bad. 

Let us pursue this analysis a bit further with the cases of the minimum 
wage and flag salute. 

We all recall the Adkins case, 8 involving the constitutionality of the 
minimum wage statute in the District of Columbia, as the case in which 
Justice Sutherland said that changes in the status of women culminating 
in the igth amendment had brought the difference between the sexes, "al- 
most, if not quite, to the vanishing point," and Justice Holmes replied: 
"It will need more than the igth amendment to convince me that there 
are no differences between men and women." 

In the Adkins case, Justice Sutherland could not see any moral issue, 
because, he said, the morals of rich women were no better than the morals 
of poor women. From this he concluded that questions of morality had 
nothing to do with the case. Indeed he went further and commented on 
the brief that had been submitted by Professor (not yet Justice) Frank- 
furter, showing what actually happens when women have to work long 
hours for inadequate wages. Speaking for a majority of the Court, Justice 
Sutherland said of these facts: "These are all proper enough for the con- 
sideration of the law-making bodies, since their tendency is to establish 
the desirability or undesirability of the legislation; but they reflect no 
legitimate light upon the question of its validity, and that is what we 
are called upon to decide." 

7. Cf. F. S. Cohen, "The Spanish Origin of Indian Rights in the Law of the United 
States" [below, p, 230]. 

8. Adkins v. Children's Hospital, 261 U.S. 5*5 (1923). 



The decision that Justice Sutherland announced in the Adkins case is 
dead and decently buried by the Supreme Court's decision 14 years later 
in the West Coast Hotel Company case. 9 But we still have with us the 
approach and spirit of Justice Sutherland's majority opinion in that case, 
the insistence that considerations which establish the desirability or un- 
desirability of legislation throw "no legitimate light" on its constitution- 
ality. And very curiously, one finds Justice Frankfurter, in the Barnette 
case, 10 using the same club that Justice Sutherland used against him, but 
this time using it against his brethren, the majority of the Court. In his 
dissenting opinion in the Barnette case, Justice Frankfurter declares: 
". . . law is concerned with external behavior and not with the inner 
life of man." Contrast that with the opinion of Justice Murphy, who, 
siding with the majority, affirms that the highest judicial duty is "to 
uphold spiritual freedom to its farthest reaches." Or contrast Justice 
Frankfurter's attempt to exclude from judicial consideration the effect 
of the West Virginia statute on "the inner life of man/' with the rationale 
of the majority opinion, delivered by Justice Jackson. ". . . the com- 
pulsory flag salute and pledge requires affirmation of a belief and an 
attitude of mind." Such action, the court held, invades the sphere of 
intellect and spirit, which it is the purpose of the First Amendment to 
our Constitution to preserve from all official control. 

By way of answer to that argument, Justice Frankfurter warns his 
brethren: ". . . if the considerations governing constitutional construc- 
tion are to be substantially those that underlie legislation then, indeed, 
judges should not have life tenure." And again, in his dissent, Justice 
Frankfurter warns against the very dire danger not only to the lifetime 
jobs of his brethren on the bench, but to the entire nation, if, as he 
says, "we unwarrantably enter social and political domains wholly out- 
side our concern," almost the very words of Justice Sutherland's opinion 
disposing of Mr. Frankfurter's brief in the Adkins case. 

Again I skip the ethical question: Which of these decisions is right and 
which of these decisions is wrong? What is of concern for the moment, is 
a very much simpler question: What was it that our judges thought they 
were doing in the Oleff case, the Northwestern Shoshone case, the Adkins 
case, and some of the flag salute opinions when they said that questions 
of righteousness, or morality, or theology, or social policy or "the inner 
life of man" could not be considered by a court of law? 

I rather think that these cases throw a good deal of light on the pre- 
vailing attitude of courts to questions of ethics. Perhaps the most obvious 

g. West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). 

io West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). 


fact, when we consider these and other cases, is that, generally speaking, 
judges think they are doing the right thing when they come to the deci- 
sions that they do come to. At least I have never known a judge who 
admitted, or even thought that he was doing what was wrong. I am quite 
willing to leave to the psychologists the question whether judges make 
the decisions they do make because they think they are right, or whether 
they think the decisions are right because they have made them. If you 
believe the former you are labeled an idealist; if you believe the latter 
you are labeled a cynic. Not caring for either label, I leave that issue to 
Dean Brown and Professor Hartman. But whichever way you answer that 
question, one thing remains pretty clear, and that is that judges decide 
cases pretty much along the lines of their own conceptions of what is, 
for them, right, decent, just, and proper. And judges' ideas of what is 
right and decent about their own behavior are inevitably tied up with 
their ideas of what is right and decent about the behavior of other people. 
This means that if you understand the ethical patterns, the value pat- 
terns, of a judge, you are better able to predict what he is going to do, 
when your client asks you for advice. You are likewise better able to im- 
prove or enlighten the ethical systems of judges if you know what they are. 
And that brings me to my final question: How are we going to discover 
the ethical views of Justice White or Justice Black? Or, more impor- 
tantly, how are we going to discover the ethical views of the Roosevelt 
contingent in the Federal judiciary or of the Truman contingent? 

One thing that makes it especially hard to answer this question is the 
judicial decorum that requires judges to conceal their ethical assumptions 
behind their large black flowing robes. In fact a major part of the judicial 
ritual consists of forms of magic whereby ethical opinions are exorcized 
from the judicial chambers. 

One of the simplest forms of magic is word magic. When the Greeks 
were much bothered by the bad winds and storms on the Black Sea, 
they gave the sea the name "Euxine," the "Sea of Good Winds." And 
when the Viking explorers, some centuries later were troubled at finding 
7,000 foot layers of ice on one of their newly discovered colonies, being 
the world's most successful real estate operators, they called their new 
colony "Greenland," thus establishing a pattern which suburban real 
estate developments follow to the present day. In the same way, when 
we are worried about the dangers of political corruption, recognizing, 
with Lord Acton, that power corrupts and absolute power corrupts ab- 
solutely, if we are particularly worried about the harm that an official 
may do we call him "Honorable," or if he is very, very powerful, and 



therefore very, very corruptible, we call him "Justice." I don't know how 
much effect the name "Euxine" had on the wind velocity of the Black 
Sea, or how much effect the name Greenland had on the melting point of 
ice in that area, or how much effect the title "Justice" had when applied 
to Mr. Sutherland or Mr. Tom Clark. But at least these honorific words 
tell us something about the people who use them and about their hopes 
and aspirations. And all this paraphernalia the oath of office, and the 
robes, the titles, the elevation of the place where judges sit above the 
place where they stood when they were lawyers all these elements of 
ritual express certain widespread human hopes that men in certain sects 
will utter words of justice as uniform as their robes, and of a higher 
quality than the words spoken a few inches lower by mere lawyers. 

According to the prevailing idea, views of ethics are highly uncertain, 
shifting and variable, while rules of justice and law are certain, stable, 
and unchanging. When we realize this, we can begin to understand why 
the Ohio Supreme Court in the Oleff case, when it considered the degree 
of sacredness of the rights of joint depositors, felt compelled to exorcise 
theology, and why Justice Jackson in the Shoshone case, and Justice 
Sutherland in the Adkins case, and Justice Frankfurter in the Barnette 
case all sought to exorcise morality from decisions in which they might 
find moral scrutiny embarrassing. 

Actually, judges are inclined to regard as theological only those the- 
ologies that they do not share themselves. The Ohio Supreme Court re- 
garded its own opinions as to the sacredness of certain property rights as 
not theological but as obvious truths; the contrary views of unsuccessful 
counsel as to the sacredness of rights of life are dismissed as theological. 
So, too, courts are generally inclined to regard as moral theories only 
those moral theories that they do not accept themselves without question. 
Justice Sutherland was inclined to regard defenses of minimum wage 
legislation for women as moral theory, whereas the denial of validity to 
such legislation he regarded as biological truth, or logic, or eternal 
justice, or constitutional law. Such terms, then, as theological and moral 
become very good negative indicators of judicial views on theology and 
ethics. It is a pretty safe rule that whenever a judge says, "This is a court 
of law," and then goes on to say that he cannot be guided by moral or 
theological considerations, he is actually being guided by moral or theo- 
logical considerations without knowing it. Perhaps in saying this I am 
only repeating, in a clumsy way, what Justice Holmes said many years ago: 
"I think that the judges themselves have failed adequately to recognize 
their duty of weighing considerations of social advantage. The duty is 



inevitable, and the result of the often proclaimed judicial aversion to 
deal with such considerations is simply to leave the very ground and 
foundation of judgments inarticulate and often unconscious." n 

Of course, in all this, judges are merely behaving like human beings. 
We are all victims of the egocentric predicament. We can all see other 
people's eyes, but our own eyes we never do see. We all see other people's 
prejudices and moral assumptions; our own prejudices and moral assump- 
tions appear to us in the guise of life's experience and wisdom. In fact, 
Descartes once said that of all God's gifts the most fairly distributed was 
good sense, seeing that everyone was satisfied that he had received his fair 

In days when orthodoxy was a term of praise, somebody coined the 
remark "Orthodoxy is my doxy, heterodoxy is the other follow's doxy." I 
think we may all say that religion is what I, and those who believe like 
me, think about the unseen world, and superstition is what the other 
fellow believes. Idolatry is the other fellow's attitude toward the material 
things that enter into religious experience; our own attitudes towards 
such material objects we characterize more circumspectly as reverence for 
religious symbolism. Theories we agree with we call facts; facts we dis- 
agree with we call theories. Other people's conceptions of the universe 
we call metaphysics. Our own conceptions we call good, hard, common 
sense. Generally speaking, common sense is the metaphysics of 500 years 
ago slightly decayed.* 

Once we recognize the personal distortions that affect each of us, 
whether we are judges or non-judges, once we recognize the blind spots 
that we each have in things that come close to us emotionally, we have 
taken the first steps toward mutual understanding on questions of right 
and wrong. Perhaps an analogy from physics may be illuminating. Mod- 
ern physics, thanks to Einstein, has developed a theoretical basis for 
predicting that what is a straight line to observation post A will be an 
ellipse to observation post B, or that events which are seconds apart at 
observation post C will be simultaneous at observation post D. In this 
way, by systematizing the relativity of the observation post, Einstein has 
made it possible to correlate and coordinate all observations in physics. 
It has eliminated relativity as a distorting factor. I think we seriously 

n. Holmes, "The Path of the Law/' 10 Harv. . Rev. 456, 467 (1897). 
* [Ed. note: See "Field Theory and Judicial Logic" (above, p. 121) for a more ex- 
tended discussion of this point.] 



need such a theory, a field theory we might call it, 12 in ethics and espe- 
cially in those fields of ethics that have a particular bearing on our legal 
problems. Given such a theory we might be able to eliminate moral 
relativity as a distorting factor and thus achieve the same kind of mutual 
understanding a translation between systems in the field of ethics that 
we have achieved in physics. 

Given such an approach, we might be able to understand some things 
that are otherwise very puzzling. For example, how is it possible for two 
lawyers, in their briefs on appeal in the same case, to give such completely 
different accounts of the facts in the case as you generally find in a pair 
of appellant's and appellee's briefs? Or how is it possible for two opinions 
in the same Supreme Court case to give such completely different ac- 
counts of the facts and the issues? Or how is it possible for two lawyers 
or two judges of equal intelligence to disagree so completely as to whether 
one case is a precedent for another case? 

The hypothesis that I want to submit for dissection by the other par- 
ticipants in this discussion is that public policy is not an emergency factor 
that you bring in as a lawyer when the cases are against you, or that you 
invoke as a judge when you have been sufficiently confused by advice of 
counsel. Public policy, or social ethics or whatever else you want to call 
your analysis of values is not an emergency third-string substitute that you 
send out on the field when the regular players and the second string 
"subs" are all used up. Rather, public policy is the field itself. It is what 
gives pattern and significance to every play in the game, to every citation 
of precedent, to every statement of facts, to every assertion of causal 
efficacy. What facts in a case are important depend upon the value screens 
through which you look at the facts of a case. Whether the differences 
between two cases are important or unimportant does not depend on 
logic. The differences are important or unimportant because of a theory 
of importance. A theory of importance, I submit, is a theory of value. 
Whenever we deal with such questions as whether the defendant exercised 
due care, or whether the plaintiff received just compensation, or when 
we consider what is fair comment in a libel case, or unfair competition, 
or fair value, these key words, "due," "just," "fair," "reasonable," do not 
have self-sufficient meanings in themselves. These legal ideals have mean- 
ing only in the context of whole patterns of social values, what we might 
call, in old-fashioned language, ethical systems. 

For most judges, for most lawyers, for most human beings, we are as 
unconscious of our value patterns as we are of the oxygen that we breathe. 

12. Cf. F. S. Cohen, "Field Theory and Judicial Logic" [above, p. 121]. 



To bring these unconscious, uncriticized value patterns into the light of 
day is, I think, the most important task that faces our generation today 
in the field of law, a task that requires cooperation among many schools 
and many disciplines. 

I do not mean to suggest that increased attention to the implicit hidden 
value judgments in our legal decisions and our statutes is going to bring 
us swift remedies for all of the ancient legal diseases. But it is encourag- 
ing to find an increased sensitivity to moral issues in everyday cases. There 
are many signs today, in the law schools and on the bench, of that in- 
creased sensitivity. The holding of this symposium is only one of many 
signs of an increased sensitivity to these problems on the part of practic- 
ing lawyers. This increased sensitivity may help us to break down an 
attitude that is just as potent a source of evil today as it was 3,500 years 
ago, the attitude that morality and ethics have to do with something up 
in the heavens, or in some far-off land, and not with the here-and-now of 
daily life. There are not as many teachers today in the law schools as 
there used to be who insist that students forget about the ethical issues in 
a case, forget about social policy considerations, and stick to "the law," 
as if there ever were any law that did not involve issues of ethics, as if 
there ever were a court judgment that did not reflect somebody's views 
of social policy, as if there ever were a case that did not depend for its 
meaning and its precedent-value upon value- judgments of judges and of 
the people that make judges and unmake judges. Those who have faith 
in democracy and human reason know that consciousness of these ques- 
tions is the first step towards intelligent mastery of our course and our 
destiny as a free people. We have been told that without such vision the 
people perish. And we know that without such vision constitutional 
safeguards and promises of freedom are only words on old pages crum- 
bling to dust. 

All of us who face the obligations that our democracy attaches to the 
study and the practice of law have a responsibility towards our fellow 
citizens, that is a greater responsibility than those in other fields and pro- 
fessions. Ours is the responsibility for deepening public consciousness of 
the hopes, the ideals, and the values that are written into our constitu- 
tions and our laws. We have a responsibility for broadening the con- 
sciousness of the ways in which we fail to meet those hopes and those 
ideals. Our society, by and large, has marked out its aspirations in the 
books of the law, for those who can read them; and we who are charged 
with the reading of those books have a special responsibility for keeping 
alive the vision of our country's highest hopes and deepest aspirations. 


Human Rights: An Appeal to Philosophers 

PERHAPS the greatest o all the riddles that the Sphinx of History has put 
before our generation is the problem of how, if at all, men of different 
races, conflicting religions, and opposing economic and political faiths, 
can live together on a shrinking earth. This is the kind of problem on 
which human beings have habitually turned to philosophers for guidance. 
We all know the penalty that the Sphinx imposes for failure to answer 
such riddles. And so today the peoples of the world ask for philosophical 
vision in meeting the practical question: What rights, if any, can a man 
claim of me not because he is my brother or my neighbor or my colleague 
or co-religionist or fellow-citizen, but just because he's human? 

This is a practical lawyer's appeal for help on behalf of clients to 
whom the question of human rights is particularly pressing. It so hap- 
pens that some of these clients are aliens, not citizens, so they can't very 
well talk or worry about rights of citizenship. Many of them are without 
property, and so not deeply interested in rights of property. Many of 
them have no jobs, and so are not particularly interested in the rights 
of labor. But all of them are human, and if that gives them any rights, 
they would like to know, and I, as their lawyer, would like to know, 
what those rights are. And so I come to a forum of the wise men of 
America searching for light on the problem. If I can return to my clients 
with even one lighted candle, that would be better than sitting and curs- 
ing the darkness. But I should like to return with a whole candelabra of 
seven candles illuminating seven questions that seem to me to be at the 
heart of the world's great darkness today. 


The first of these questions is a very modest one, which might be an- 
swered not only by utilitarians and anti-utilitarians, Thomists and anti- 
Thomists, Marxists and anti-Marxists, but even by those philosophers 

Presented as an address at the 1952 annual meeting of the American Philosophical 
Association, Eastern Division. Published in The Review of Metaphysics, 1953. 



who think that ethical statements are neither true nor false but only 
animal noises, like the barking of dogs or the song of the mocking-bird, 
which are intended to influence the behavior of other animals and fre- 
quently do. Our first question, then, is: When people discourse on human 
rights, what light does such discussion throw upon the character and 
motivations of the discussants? 

This, I submit, is a significant question even if there are no human 
rights. Even outside the field of ethics we often find in a statement more 
information about the speaker than about the object of his discourse. 
One may disbelieve in witches and yet find significance in the fact that 
the State of Delaware and, until 1935 or so, the Federal Government have 
declared witchcraft to be a punishable offense. That may not tell us 
much about witches but it does tell us something about the State of 
Delaware and the Federal Government. Consider, for example, a com- 
pletely Machiavellian cynic who views the discussion of human rights as 
a process of noise-making by which rival diplomats seek to put their 
adversaries in corners and bid against each other for the support of the 
wretched of the earth. May not such an amoralist teach us something 
about the motivations and significant conditions of assertions about 
human rights, and thus help us to understand what goes on in the heart 
and nerve centers of the world? 


Our second question, again, might be answered by any philosopher, even 
by one who thinks that ethical discussion does not consist of true or false 
statements, any more than chess. But if ethical discussion is a game, with 
influences upon human behavior constituting the stakes, it is at least an 
important and exciting game. And we can certainly ask: How do people 
in fact reach agreements on basic objectives? Is the shift in language from 
"I want" to "You and I each have a right" a part of the process of over- 
coming our egocentric predicaments, and perhaps also our ethnocentric 
and politicocentric predicaments? Does not civilized society rest in large 
part upon the distinction that most of us learn in childhood between 
wanting something and recognizing the right of another to grant or with- 
hold that which is desired? What is there about the process of rational 
discussion that can lead us not only to change the desires of others but 
even to curb our own desires, and thus reach agreements where hostility 
once existed? Surely this is a question on which any philosophy of human 
nature should have light to shed. 




My third question is again addressed to cynics and skeptics as well as 
to believers in the existence of moral knowledge. Suppose we begin with 
the cynical observation that language is an invention for concealing 
human thought. We note then that some words carry remarkable powers 
in this direction. For example, in the "Universal Declaration of Human 
Rights" on December 10, 1948, some 48 nations agreed that nobody 
should "arbitrarily" be deprived of his property (Article 17) or his na- 
tionality (Article 15) or be subjected to "arbitrary arrest" (Article 9) or 
"arbitrary interference with his privacy" (Article 12). Does such an agree- 
ment mean more than a statement that we are against sin? Doesn't the 
use of the word "arbitrary" in such clauses constitute the clearest evidence 
of the wide diversity that exists in the world today as to what can prop- 
erly justify invasions of privacy, arrest, expatriation, or the expropriation 
of private property? And from this perspective we may ask: How do 
people use language to conceal disagreements on basic objectives? Are 
there some terms like "arbitrary" or "reasonable" which can serve us as 
semantic guide-posts to the areas of significant disagreement on the con- 
tent of human rights? Certainly, a sophisticated philosophy of language 
should be able to cast great light on the actual extent of human agree- 
ment and disagreement. 


There is a fourth question on which a practicing lawyer may appeal to 
philosophers for help without limiting his appeal to those who take ethics 
seriously as a field of true or false opinions. That is the question which 
is integral to any philosophy of history, and basic to any philosophy of 
legal history, the question, namely: How do the social arrangements that 
we call rules of law come into beingf The idea of a universal human 
right, I take it, comes to mankind only after a long history of family 
rights, tribal rights, and other rights limited to particular groups. One 
finds perhaps the first adumbration of the idea of human rights in the 
words of a great law teacher: "The stranger that sojourneth with you 
shall be unto you as the home-born among you, and thou shalt love him 
as thyself; for ye were strangers in the land of Egypt/' 1 Somewhat the 
same idea is implicit in the Aristotelian doctrine of natural rights, espe- 
i. Leviticus 19:34. 



daily in its stoic interpretation. But only with the union of the Hebraic 
and Hellenic traditions in scholastic philosophy do we find the idea of 
human rights put forward in all its boldness, most eloquently, I think, 
in the discourse of Francisco Vitoria, De Indis, in 1532, with its insistence 
that American Indians, Moslems, and other unbelievers, living in sin, 
have certain rights just because they are human. Kant, in 1784, in his 
Idea of a Universal History from a Cosmopolitical Point of View> with 
uncanny gifts of prophecy, described the events of our day, the fumbling 
and halting efforts at agreement among peoples in conflict. These efforts 
he saw as a final projection, upon the international sphere, of that dialec- 
tic process by which man's "unsocial sociability" hammers agreement out 
of natural antagonisms and thus begins "to arrange for a great future 
political body, such as the world has never yet seen." Have 168 years of 
second thoughts added to Kant's vision of the events of our day or to 
Vitoria's expression of basic human aspirations? 


The questions put so far are not specifically ethical, although they may 
illumine our understanding of the events on which some of us seek to 
form ethical judgments. There remain some questions which are spe- 
cifically ethical and which will therefore be dismissed as nonsense by those 
who deny the possibility of knowledge of the good. Now, whether or not 
goodness is relative, certainly nonsense is relative. Perhaps a recognition 
of the relativity of nonsense may save us from the wasted effort of seeking 
wisdom concerning ethical truth or modern art from those who consider 
ethical truth or modern art special forms of nonsense. Let me then limit 
my remaining questions to those who can conceive the possibility of 
true or false ethical judgments, and I include in this category relativists 
as well as absolutists, since even a relativist's value judgments are true 
or false when his moral perspective or field is fully defined. The first of 
these specifically ethical or meta-ethical questions is simply: What ethical 
implications follow logically from the assertion or denial of any given 
human right* Is there, for example, a difference between the goodness of 
life and the right to life? Surely, if the logical analysis of ethical systems is 
a proper part of philosophy, philosophers ought to be able to show how 
a system qualifies or defines the propositions it contains, and if philos- 
ophers can do this they can surely help a practical lawyer to avoid the 
waste of effort that is inherent in the pursuit of a plurality of mutually 
incompatible ideals. 



The next basic question on which I and many others look for light from 
ethical philosophers is the question: What sort of evidence can establish 
a human right? Even if we agree that no formulation yet achieved of 
human rights is entirely accurate, can we say, at least, that some state- 
ments are more inaccurate than others? And if so, which? If we agree that 
Jones has no right to live, does this throw any evidenciary light on the 
proposition that all men have a right to live? Or can we blithely accept 
both propositions as true? And can we then charge any logician who re- 
jects this happy tolerance with usurpation of judicial functions or with 
contempt of court? Or, to put the matter more generally, by what scien- 
tific, unscientific, or pre-scientific, procedure can we achieve greater ac- 
curacy in our further formulation of ethical judgments in the field of 
human rights? 


We come finally to the $64 question, to which all our other questions are 
somehow preliminary: Are there any human rights, and if so, what are 

Now it may be supposed that only some extraordinary coincidence 
would lead philosophers who disagree as to the meaning of the word 
"right/' and disagree as to the criteria for testing ethical truth, to any 
consensus as to the content of human rights. But this would be an over- 
hasty assumption. If we take, for example, the proposition in Article I 
of the "Universal Declaration of Human Rights" that "all human beings 
. . . should act towards one another in a spirit of brotherhood," I think 
we are likely to find Saas proposition generally defended by utilitarians 
on the ground that in the long run more human misery is avoided by 
brotherly regard for other humans than by any contrary principle. We 
are likely to find Thqmists, I think, generally supporting the brother- 
hood principle on the further ground that we are all under a divine duty 
to recognize each other as children of a single heavenly Father. The 
Hegelian proponent f self-development as the highest human good may 
join in the consensus on the ground that unfraternal hatreds impede the 
human development of both the hater and the hated. Perhaps the Yogi, 
if not the Commissar, inay join the consensus on the ground that the 
sense of egocentric individuality is an illusion, and that the sense of 


union, dimly perceived in the notion of brotherhood, is a necessary ap- 
proach to understanding and to the peace that passeth understanding. 
But whatever the different paths that lead us together, and whatever may 
be the further paths by which we shall separate when we come to pass 
judgment on pressing political controversies, the fact that today so many 
different philosophies can find even a small area of common intersection 
and moral consensus, seems to me to be one of the great significant facts 
of our age. To explore that significance seems a task worthy of all our 




Law and the Modern Mind is the most provocative stimulus to thinking 
on fundamental legal problems that has appeared in the Anglo-American 
literature of jurisprudence since Dean Pound's Spirit of the Common 
Law. Mr. Frank, himself a practicing lawyer, has tackled these problems 
in a thoroughly practical way. The significance of precedent, the relation 
of opinions to decisions, the problem of rule and discretion, the nature 
of law, these and a dozen other foci of legal controversy are approached 
with a persuasive awareness of the factual context in which these problems 
assume real significance. A lively imagination, a remarkable facility for 
coming suggestive expressions, and a speaking acquaintance with the 
principal works of his contemporaries lend Mr. Frank's volume a dash 
and sparkle rather shocking to one who associates jurisprudence with the 
sedate commentaries on Austin and Maine which appear In England 
about once a year. All this is not to suggest that Law and the Modern Mind 
can be swallowed and digested as it comes from the press. It must be 
washed and peeled, and there are unripe and over-ripe parts to cut out; 
it must be boiled and mashed and seasoned with a good deal of salt be- 
fore it can safely be entrusted to a moderately sensitive legal stomach. 

Frank's fundamental thesis is that the law is not and ought not to be 
certain and predictable and that those who think otherwise are simply 
infantile. Down through the ages, we are told, men have associated law 
with something eternal which persists through changes of circumstance 
and which somehow lies deeper in the nature of the universe than the 
ephemeral decisions of judges and juries in particular cases. When counsel 
argue, they assume that there is an already existent rule of law which 
makes it the plain duty of the court to decide in their respective favors. 
The judge in writing his opinion will reaffirm one of these alleged duties 
to the past. Even legal philosophers who know that judges make law, e.g., 

Published as a review of Jerome Frank's Law and the Modern Mind in American 
Bar Association Journal, 1931. 


Demogue, Pound, Wurzel, think it well to maintain this picture of the 
court finding pre-established law, lest judges lose a sense of responsibility 
and laymen a sense of security. So we go ahead and define law as some- 
thing fixed and discoverable, whether it be the perfection of reason, or 
the dictates of God, or the voice of the Zeitgeist, or the command of the 
sovereign, or the rules that have been laid down by courts. Then we 
cover up the uncertainties in our legal "system" by calling the work of 
juries a decision of facts, by refusing to look behind the distorted view 
of the facts which the judicial opinion generally presents, by putting our 
legal rules into terms that sound the same but mean quite different things 
in different cases, and by calling decisions that do not fit our wholly un- 
official patterns wrong (as if this somehow made them vanish). How is it, 
asks Frank, that lawyers and jurists, a class distinguished for superior 
mentality, should believe or want to believe in this strange mythology? 

The answer to this question our author finds in the fact that all lawyers, 
jurists, and laymen were, before birth, rather more adequately provided 
for in the way of food and lodging than they have been since, that most 
of them after birth discovered fathers stronger and wiser than themselves, 
and that in later years a yearning for primeval security, comfort, and 
dependence brings about an emotional and irrational attitude towards 
the Law as a Father-Substitute, wise and powerful with superhuman wis- 
dom and power, promising to those who submit to It security from the 
hazards of life. The thesis is, of course, Freudian, and its elaboration is 
definitely reminiscent of Krutch's Modern Temper. Like the metaphy- 
sician who finds behind the passing flux of phenomena an eternal and 
harmonious realm of Platonic essences, like the orthodox religionist, the 
believer in legal certainty is a sort of glorified Mammy-singer yearning 
for a Kentucky home which no longer exists. 

In all this Mr. Frank has missed a large part of human wisdom. Granted 
that the actual certainty of the legal order has often been greatly overesti- 
mated, granted too that certainty is often purchased at the expense of 
"justice in the particular case," granted as well that the human demand 
for security has deep and sub-rational roots in childhood and possibly in 
pre-natal existence, it does not follow that this demand is undeserving of 
legal protection. Uncertainty, as our author insists, is adventure, but ad- 
venture is hunger and thirst and heart-ache and death. Civilization rests 
upon a vast, intricate complex of expectations and prophecies, and only 
the predictable behavior of those bodies to which society has entrusted 
its collectivized physical force can put iron into that scaffolding of hopes 
and reliances. Even from the standpoint of "justice in the particular case/' 
uniformity of decision is the only practical guarantee against the tyranni- 


cal exercise of prejudice which our author is quick to recognize as the 
outstanding defect of the jury but which is strangely missing from the 
picture he draws of judicial discretion freed from its bonds to the past. 

The questions which Mr. Frank has put to us are not as simple as the 
answers he has offered. Granted that much nonsense has been uttered in 
the name of legal logic, eternal principles, and "law apart from decisions/' 
there is, as our author frequently recognizes in the cool retrospection of a 
footnote, something beyond decisions, in terms of which we can criticize 
decisions. There is something to which the judicial "hunch" should con- 
form; there are some patterns to which it does conform. 

A cavalier disdain for the compromises between certainty and sensitive- 
ness which have appealed to legal philosophers like Pound and Cardozo 
lends a picturesque clarity to our author's assaults upon "rules of law," 
"legal scholasticism/' "judicial somnambulism/' and "Bealism." But an 
insistence upon the omnipresence of uncertainty and the universal value 
of discretion leaves Mr. Frank in a fort which he has ably demolished. It 
is ancient wisdom that only an absolutist can deny all absolutes. And he 
will certainly be wrong. 


Talleyrand's comment on Bentham in 1830 still rings true: "Though all 
the world has stolen from him he remains still rich." Few indeed are the 
characteristic ideas of contemporary legal thought that cannot be found 
set forth in his writings. The programs of "sociological," "institutional/* 
"scientific," and "realistic" jurisprudence are all permutations and com- 
binations of four principal Benthamite theses: (i) that the meaning of 
legal concepts and legal rules is to be found not simply in their systematic 
relations to other concepts and rules but in their human consequences; 
(2) that legal science is therefore dependent for its basic materials upon 
social statistics and upon all the social sciences; (3) that the reality of a 
rule of law consists in its enforcement and not in its goodness; (4) that 
judges, at least under the Common Law, make the law they are supposed 
to "discover" and "enforce." 

Mr. Ogden's two volumes, Bentham's Theory of Fictions and The 
Theory of Legislation, are generously "introduced" and annotated in the 
attempt to indicate how much of the collected material is still on the front 

Published as a review of C. K. Ogden's Bentham's Theory of Fictions and J. Ben- 
tham's The Theory of Legislation (ed. Ogden) in Yale Law Journal, 1933. 


line of legal and philosophical progress, how much of it is now accepted 
and taken for granted, how much of it is outgrown, how much of it stands 
refuted. The analysis is carried out with patience and with imagination. 
Unfortunately, however, the traditional English insularity in law and 
philosophy circumscribes the scope of Mr. Ogden's efforts. The discussion 
of functionalism and operationalism in philosophy is carried on with com- 
plete disregard of the work of Rudolf Carnap, Charles S. Peirce, John 
Dewey, and C. I. Lewis, and with only the most perfunctory reference 
to Ludwig Wittgenstein. In fields more strictly legal one finds the English 
non-recognition policy towards American law reviews in full sway. A 
few casual references to works of Duguit, Stammler, Petrazicki, Cardozo, 
Pound, Kocourek, Hutchins, and Zane constitute the only explicit recog- 
nition of modern legal thought beyond British frontiers on the subjects 
of Bentham's writings. 

The Theory of Legislation, compiled by Dumont from Bentham's 
scattered manuscripts, translated by Hildreth, and now edited by Mr. 
Ogden, presents, at least in outline, all the fundamental tenets of Ben- 
tham's theory of law and law reform. Dicey scarcely exaggerated when he 
said that "the history of legal reform in England in the nineteenth cen- 
tury is the story of the shadow cast by one man, Bentham"; and the force 
of Bentham's contributions to enlightened law reform is not yet spent. 
Today a good deal of Bentham's individualist faith in the ultimate coin- 
cidence of self-interest and social welfare seems definitely reactionary, but 
the name of radical cannot yet be denied to one who advocated the use 
of the inheritance tax to equalize wealth and preached the duty of the 
state to provide a minimum of subsistence for all its citizens. And a Fabian 
Socialist gives Bentham no more than his due when he writes: "He had 
espoused the cause of every struggling class; he had advocated freedom for 
every struggling people; he had fought for every persecuted sect." x 

If contemporary jurisprudence has advanced beyond Bentham in im- 
portant respects, having at its disposal a more adequate body of social 
theory and social fact, there are still seminal ideas in The Theory of Legis- 
lation which can fertilize arid wastes of contemporary controversy. 

Discussion of the imperative element in law has not yet digested Ben- 
tham's perception that laws, such as those of inheritance or of the passage 
of title in sales, are humanly significant because they are footnotes to the 
criminal law, explaining the command that A refrain from taking B's 
property. When the essential incompleteness of most rules of property 
law, of the law of domestic relations, and the like is generally recognized, 
American law schools may outgrow the disdain of criminal law* By visual* 

i. Victor Cohen, Jeremy Bentham, Fabian Tract No. 221 (1927), p. 18. 



izing the criminal sanctions which every legal rule engenders, they may 
see more clearly the coercive, nonvoluntary aspects of law and the need 
for social justification of such coercion. 

We have heard a good deal, in the last twenty years, of the need for 
examining the consequences of legal rules, but "sociological jurispru- 
dence" remains in large part a pious program rather than a record of 
achievement. At the root of this failure is the lack of any definite criterion 
of importance which will dictate which of the infinite consequences of 
any legal rule or decision deserve to be investigated. Such a criterion of 
importance can be supplied only by an ethical system. But thus far, none 
of the advocates of sociological jurisprudence believe in any ethical sys- 
tem; or, if they do, no word of it is spoken before company. It is Bentham's 
peculiar virtue not to have been ashamed of the ethical system in which 
he believed. His analysis of the effects of legal rules upon the happiness 
and suffering of individuals thus gives a constant and precise focus to his 
vision of what the law actually is, as well as to his vision of what the law 
ought to be. Despite the limited social data at his disposal, Bentham's 
functional analyses of rules of incest, of property distribution, and of the 
choice of penalties, are unsurpassed contributions to sociological juris- 

A third contribution to contemporary legal thought contained in The 
Theory of Legislation is the emphasis upon law-enforcement and law- 
obedience as the life of the law. Obedience to law presupposes general 
legal education (whence the advantage of codification). Education, to be 
effective, must be dramatic (whence the advantage of "characteristic" 
punishments). Above all, the problem of enforcing a law must be seen 
as a problem in diminishing the opportunities that permit and the social 
influences that induce its infraction. 

Bentham's Theory of Fictions is an attempt to make explicit the philo- 
sophical method that underlies Bentham's legal thought. Though the 
scattered writings which Mr. Ogden has pieced together fall far short of 
presenting a coherent philosophical theory, they do foreshadow in strik- 
ing terms the most important philosophical doctrines of the last fifty years. 

The focus of Bentham's attack, in his development of a theory of fic- 
tions, is in the realm of legal nonsense. The attack is simple enough when 
it is directed against the ancient and venerable nonsense of sham bail, 
common recovery, trover, ejectment, and the whole firm of Doe, Roe, Jack- 
son, and Titmouse. But Bentham finds more insidious nonsense in the 
common use of such concepts as right, duty, property, and title. The 
task of distilling meaning out of masses of ambiguity, however, demands 
logical instruments not found in the traditional logic with which Ben- 



tham was familiar. Nothing daunted, Bentham went ahead to create what 
is now called the functional approach. Beginning with those aspects of 
common experience which to him seemed most indubitable, bodies exist- 
ing in time and space, Bentham challenged the rest of the intellectual 
world to show its legitimacy by tracing its descent from such sensible ob- 
jects. The challenge is directed not only at so-called legal fictions, but at 
all qualities, classes, and relations. 

To call everything fictitious that is not a definite, particular, physical 
thing is, of course, nominalism. It would be easy to show that many of 
Bentham's statements on this score lead to patent self-contradiction. But 
it is only fair to recognize that Bentham's nominalism is methodological 
rather than categorical, a rule of evidence rather than a rule of substance. 
It amounts, in effect, to setting up a rebuttable presumption that any term 
which does not directly refer to some existing physical object is nonsensi- 
cal, i.e. devoid of meaning. The presumption can be rebutted by a defini- 
tion of the challenged term as a construct or function or "psychic arrange- 
ment" of terms that do have a direct physical reference. The concept of 
a legal right wins admission to the category of reality when it is defined 
as a function of judicial behavior, as "a disposition on the part of those 
by whom the powers of government are exercised, to cause him to possess, 
and so far as depends upon them to have the faculty of enjoying, the 
benefit to which he has a right." (p. 119). One thinks of the origin of 
"realistic jurisprudence" in the phrase of Holmes, "A right is but the 
hypostasis of a prophecy," and remembers that Holmes is the child of 
Austin, and Austin the child of Bentham. 

There will be disagreement enough, among philosophers and among 
jurists, as to the mechanics and the direction of this analysis which sepa- 
rates nonsense from meaning. The physical objects which to Bentham 
seem the primary base of intellectual operation appear to many philoso- 
phers to be themselves complex logical constructs of something simpler, 
as, for example, events or sense-data. The joys and pains to which Ben- 
tham tried to reduce the analysis of legal rules appear to many jurists to 
be themselves unreal fictions. There are intimations in Bentham's Theory 
of Fictions that no absolute answer to this question of the ultimate nature 
of analysis is possible. But even if each of us must build the world with a 
different set of blocks, there are some common laws of architecture that 
Bentham and Holmes and their followers are formulating in law, while 
philosophers, mathematicians, economists, and sociologists pursue their 
own versions of the "functional approach/' 




For at least twenty-five centuries, the opening paragraph of this volume 
informs us, men have tried to answer the question, "What is Law?" Ap- 
parently they have not succeeded. Perhaps this is because so many of them, 
like Dr. Robson, have failed to understand the question they were trying 
to answer. Logically, a definition of law may be either a resolution (which 
is neither true nor false) to use the word "law" in a certain fashion, or a 
description (which is factually correct or incorrect) of something that has 
already been identified. Dr. Robson, however, searches for a unity in all 
the many things that men have thought of when they used the word 
"law." This unity our author finds on the level of the transcendental free- 
dom of the will, according to Kant. 

He is emphatic in his conviction that Austin's simple definition of law 
as commands enforced by governmental sanctions is an "unpleasant brew" 
(p. 293). This volume leaves us with a picture of law that includes the 
"laws of tennis," the suicide customs of the Trobriand Islanders, and the 
laws of mathematics and biology. This peculiar lumping of different sub- 
jects is justified in terms of the fashionable metaphysical doctrine that all 
rules and principles are alike subjective figments of the human mind. The 
Robson brew may be pleasanter to take than the Austinian, but in the 
cold gray dawn of the morning after, one longs for the crystal clear water 
of Austin, who at least had the logical acuteness, together with his teacher 
Bentham and his American disciples, Gray and Holmes, to distinguish the 
peculiar characteristics of the judicial process, to define in terms of ju- 
dicial consequences such concepts as duty, privilege, property, and con- 
tract, to illuminate practical legal problems through the proper use of 
such realistic definitions, and to separate legal description from ethical 
criticism, to the lasting benefit of both activities. But despite his verbal 
rejection of Austin, Dr. Robson frequently invokes Austinian doctrine, 
e.g. when he seeks to separate the "legal" ordinances of the Book of Exo- 
dus from those that are "purely moral" (p. 39). 

No doubt, it is as unjust to criticize this book in terms of its conclu- 
sions as it would be to ask for one's money back because the merry-go- 
round brought him back to the place from which he started. The whirl is 
interesting enough. We begin with the Code of Hammurabi, the Laws of 
Manu, and the themistes of Homeric Greece, follow the career of the 
Twelve Tables, catch brief glimpses of the Pentateuch and the Koran, 

Published as a review of William A, Robson's Civilisation and the Growth of Law 
in Columbia Law Review, 1936. 


wrestle with civil procedure before the Icelandic Thing, watch the "law 
in action" of Malinowski's Melanesians, read the curses that protect the 
temple of Kak, shudder at the legalities of the Inquisition, and rejoice in 
the final achievement of a rational attitude towards law in the free de- 
mocracies of contemporary Europe and America. It is perhaps inevitable 
that legal history on so grand a scale should merge into mythology, and 
the reader may take with a pinch of salt such statements as: "there was 
as yet (in early Greece) no conception of customary law" (p. 27); that 
inheritance through the female line was peculiar to Roman law (p. 221); 
or that the theory of the social contract, as developed by Hobbes, Locke, 
and Rousseau was simply an imaginative fantasy based upon ignorance of 
history (pp. 258-64). A certain genial optimism, rather than strict concern 
for facts, enables Dr. Robson to record the disappearance of such barba- 
risms as the use of torture to secure confessions or the resolution of dis- 
putes through the combat of hired champions. And the student of national 
affairs may not be entirely satisfied with Dr. Robson's assurance (pp. 109- 
110) that ancient magical practices of determining the validity of laws by 
looking at the skies on a clear moonless night or by examining the entrails 
of a fowl have long since been abandoned. 

As befits a product of the London School of Economics, this volume 
lacks the stale and musty smell that envelopes most modern English writ- 
ings on jurisprudence. As a serious attempt to mark the place of legal 
thinking, through the ages, in the stream of human thought, this volume 
represents an encouraging emergence from a certain provincialism in the 
English bar which our author has aptly characterized: "On the whole, 
English legal thought since Bentham has run in narrow grooves, re- 
maining crabbed and 'practical' in the worst sense of the word, unimagi- 
native and devoid of any philosophic, ethical, or sociological background. 
... It is scarcely too much to say that jurisprudence hardly exists in 
Great Britain. Philosophy and law are barely on speaking terms, while 
sociology and law are strangers who have never even met (p. 254)." 

Indeed, Dr. Robson has so far abandoned the tradition of British legal 
scholarship as to read some of the writings of such American legal thinkers 
as Roscoe Pound, Morris R. Cohen, and John Dickinson. While there is 
as yet, unfortunately, no hint of intellectual contact with the contribu- 
tions of Holmes, Gray, Brandeis, Cardozo, Radin, Llewellyn, or Frank 
within the fields treated by this volume, it is only fair to say that Civilisa- 
tion and the Growth of the Law represents a great advance towards mo- 
dernity in English legal thinking. 




The publication of Ehrlich's Grundlegung der Sodologie des Rechts 
in 1912 marks a significant point in the development of sociological juris- 
prudence. Professor Moll's translation of this modern classic should 
stimulate criticism and clarification of the fundamental ideas that under- 
lie this approach. 

Ehrlich's basic thesis is that law is not a product of courts and legisla- 
tures, but rather a product of society. Society, he shows, sometimes has 
little regard for the content of statutes and judicial decisions. Statutes 
and decisions which are thus disregarded are not "really" law. On the 
other hand, many rules of conduct have the force of law even though they 
do not emanate from any state and are not enforced by any court. Law 
without judges or sheriffs is found in the realm of international relations. 
It is found in the many fields of constitutional and administrative law 
that never come before a court. Even in the field of private law many 
rules are established and enforced by social sanctions other than those of 
the political state. 

One performs one's duties [Ehrlich declares] as father or son, as 
husband or wife, does not interfere with one's neighbor's enjoyment 
of his property, pays one's debts, delivers that which one has sold, 
and renders to one's employer the performance to render which one 
has obligated oneself. The jurist, of course is ready with the objec- 
tion that all men perform their duties only because they know 
that the courts could eventually compel them to perform them. If 
he should take the pains, to which, indeed, he is not accustomed, to 
observe what men do and leave undone, he would soon be convinced 
of the fact that, as a rule, the thought of compulsion by the courts 
does not even enter the minds of men. In so far as they do not simply 
act instinctively, as indeed is usually the case, their conduct is deter- 
mined by quite different motives: they might otherwise have quarrels 
with their relatives, lose their positions, lose custom, get the reputa- 
tion of being quarrelsome, dishonest, irresponsible persons (p. 21). 

Law, Ehrlich asserts, consists not of legal propositions but of legal rela- 
tionships, institutions, and arrangements that make up the inner order 
of associations and, in general, the order of society. This we recognize 

Published as a review of Eugen Ehrlich's Fundamental Principles of the Sociology 
of Law in Illinois Law Review, 1937. 



without question when we discuss the law of other times and places. The 
legal historian, Ehrlich notes, 

states the rules according to which, in antiquity or the Middle Ages, 
marriages were entered into, husband and wife, parents and children 
lived together in the family; he tells whether property was held in- 
dividually or in common, whether the soil was tilled by the owner 
or by a lessee paying rent or by a serf rendering services; how con- 
tracts were entered into, and how property descended. One would 
hear the same thing if one should ask a traveler returning from for- 
eign lands to give an account of the law of the peoples he has become 
acquainted with. He will tell of marriage customs, of family life, of 
the manner of entering into contracts; but he will have little to say 
about the rules according to which lawsuits are being decided (p. 1 1). 
The legal norm according to which legal disputes are being de- 
cided, the norm for decision, is merely a species of legal norm with 
limited function and purpose (p. 24). 

On the basis of this approach, Ehrlich marks out the boundaries of 
legal sociology. He shows how studiously this no-man's land of the living 
law has been avoided by earlier jurists, and how greatly this avoidance 
has impoverished legal science. In effect, legal science has surrendered the 
problems of law enforcement, of the limits of effective legal action, and 
of the actual sources of law, to the domain of superstition, fanaticism, 
and fantasy. Legal historians, failing to foster an understanding of the 
economic and social relations out of which legal propositions arise, have 
produced a kind of jurisprudence that is "antiquarian rather than his- 
torical" (p. 327). 

Ehrlich's thesis is important, I think, and his elaboration of it is fruit- 
ful. Yet I cannot help feeling that the system of jurisprudence which 
Ehrlich builds is vitiated by logical confusion, lack of historical perspec- 
tive, and ethical naivet. 

In the first place, the brunt of Ehrlich's attack is against certain defini- 
tions. Not realizing that definitions are acts of will, which are neither 
true nor false, he marshals evidence from all climes and ages to prove 
that his definitions of "law" and "courts" are true and that all other defi- 
nitions are false. This is a thankless task that is always involved in more 
or less obvious circular reasoning. The upshot of his argument is to ob- 
scure the important distinctions between courts and other instruments of 
social control, and between law and other forms of social regulation* Thus 
the author of this work, insisting that courts are not necessarily organs of 
any state, declares: "Considered functionally, the court is a person or a 



group of persons who are not parties to the controversy and whose func- 
tion is to establish peace by the opinion which they express about the sub- 
ject matter of the controversy" (p. 121). This definition would include ar- 
bitrators, conciliation boards, lexicographers, writers of books on eti- 
quette, and public opinion, generally, as it is reflected by a host of special 

While courts thus merge with all other social institutions for peace- 
making, under Ehrlich's terminology, law itself merges with religion, ethi- 
cal custom, morality, decorum, tact, fashion, and etiquette. "It is not an 
essential element of the concept of law that it be created by the state, nor 
that it constitute the basis for the decisions of the courts or other tribunals, 
nor that it be the basis of a legal compulsion consequent upon such a 
decision" (p. 24). The only definite attempt that Ehrlich makes to dis- 
tinguish between law and other types of social regulation is in psychologi- 
cal terms: "Compare the feeling of revolt that follows a violation of law 
with the indignation at a violation of a law of morality, with the feeling 
of disgust occasioned by an indecency, with the disapproval of tactlessness, 
the ridiculousness of an offense against etiquette" (p. 165). It is hardly a 
useful definition of law that would compel us, in deciding for instance 
whether the duty to include gambling profits in an income tax return is a 
legal duty, to first conduct a statistical survey of emotional reactions of 
"revolt," "indignation/ 5 "disgust," etc. 

Ehrlich's logical confusion with respect to the nature of definitions 
leads him to spend a good deal of time with the ancient riddle, beloved 
of Continental jurists, "Which came first, the law or the state?" The 
logically sophisticated will recognize that the answer to this riddle, like 
the answer to the egg-and-chicken riddle, depends upon the definitions 
with which we begin, and that without such definitions there is no 
answer, because there is no question. 1 If we define "the state" as a product 
of certain social relationships and call these relationships "law," then 
we make "the state" secondary. If we define "law" as that form of com- 
pulsion exercised by certain organs of a "state," then "the state" is pri- 
mary. In either case argument is futile and foolish. 

Behind the metaphysical riddle of law and the state, however, there 
lies an empirical problem of vital importance: To what extent do states 
act in a creative way in formulating legal institutions and rules of law, 
and to what extent do states merely rubber-stamp what other organs of 
society have created? 

Now this is a question that must be answered differently for different 
times and places. Perhaps empirical studies would show that the social 

i. Cf. F. S. Cohen, "What is a Question?" [above, p. 3]. 



process of law making and law enforcement will be exercised primarily 
through state organs only where the state represents the most important 
forces and unities of a given society. A different condition may obtain 
when the state is simply a military alliance of societies with different races, 
economies, and customs, as was the Austro-Hungarian Empire of which 
Ehrlich was a subject. Under such a state structure, it is quite understand- 
able that a good deal of state law will turn out to be law on paper, without 
much effect on the living law of certain regions (pp. 161, 370-1). Likewise, 
where a single society is broken up into numerous independent states, the 
society is likely to develop sources of law independent of these political 
units. This was the case in Germany before 1870, and perhaps goes far to 
explain the high development of a "common law" based on Roman 
sources, independent of the legislation of the German states. It is perhaps 
the case in the United States today, where the constitutional principle 
that each state has its own independent system of private law (outside the 
field of bankruptcy) no longer corresponds to the needs of a national 
social order for uniform legal relations, particularly in commercial fields. 
What we see, as a result, is the development of a national commercial law, 
based on the doctrines of law teachers, on the work of such private organ- 
izations as the American Law Institute and various committees for uni- 
form state legislation, on the tendency to expand the jurisdiction of the 
federal courts and on the tendency of those courts to disregard local 
peculiarities of unwritten law or to restrict radical innovations in the 
written law on constitutional grounds. In this development of a national 
commercial law, our state legislatures are, on the whole, rubber stamps 
rather than creative forces. The true creative forces would be found in 
commercial relationships and institutions that transcend state lines. To 
recognize these empirical variants in the problem of the relationship be- 
tween law and the state is to substitute a thorough-going sociological ap- 
proach for Ehrlich's metaphysical riddle (or, more accurately, unmeta- 
physical riddle). 

In his effort to show that semper et ubique the state plays a secondary 
role in law-making and law enforcement, Ehrlich does some violence to 
the facts of law administration. When he states, for instance, that com- 
pulsory execution "is of social significance only in the case of obligations 
to pay money" (p. 68), he overlooks the important role of injunction, 
mandamus, replevin, judgments of ejection, and other non-pecuniary 
decrees on which a large part of the common law as well as of the Con- 
tinental civil law is based. Several equally exaggerated statements of law 
and legal history might be cited. 

It is most unfortunate that Ehrlich, in championing the sociological 

1 88 


approach with all fervor, should limit the scope of that approach by ex- 
cluding the state itself from society. The dichotomy repeatedly drawn be- 
tween the state and society (pp. 121, 356, 366, 376, 400) is wholly unjusti- 
fied. By viewing the state as an organ or structure of society, 2 we are en- 
abled to apply sociological analysis not only to the customs of bankers or 
peasants but also to the customs of judges. It is in this respect, particularly, 
that modern American jurisprudence has made a great advance beyond 

Ehrlich's discussion of the relation between law and justice gives no 
evidence of careful thinking. When our author is not discussing ethics 
he passes ethical judgments upon various types of legislation without 
bothering to state the grounds of his judgment. When he does try to 
formulate a definite concept of justice, he flounders between two notions, 
neither of which is profound. At times, he refers to justice as the summa- 
tion of tendencies in the actual law, i.e., as the law of the future (p. 204) 
a bit of pious optimism for which, in the year 1912, it was not thought 
necessary to present any evidence. Again, he refers to justice as the basis 
on which issues are decided by "disinterested" observers (pp. 200, 206-7). 
This notion will not stand logical scrutiny. The greatest judges are pas- 
sionately interested in what they conceive to be principles of justice and 
commands of duty. A "disinterested" observer is not one without interest 
in a moral issue, but one whose interest is confined to the morally im- 
portant aspects of the issue rather than to morally irrelevant aspects such 
as the birth and wealth of the parties. But what aspects are morally im- 
portant and what aspects are morally irrelevant? When are the birth and 
wealth of the parties proper considerations in deciding a case? These 
questions cannot be answered without a theory of values. It is logically 
fallacious, then, to derive a theory of values from the judgments of a 
supposed disinterested observer. 

Whether Ehrlich's thesis is true or false or logically confused and 
neither true nor false, it cannot be denied that his approach brings an 
important contribution to the theory and the practice of law. 

To the teacher and student of the law Ehrlich presents a rich category 
of material that has been largely ignored alike by those who conceive law 
as a distillate of decided cases, and by those who conceive it as a web 
of juristic theory, i.e., the category of the "living law/' The "living law" 
can be found in the contracts men make, written and unwritten, in the 
written or unwritten constitutions of the various associations in which 
people function, from the family to the modern business corporation, in 

2. ". . . the state is the form in which the people have become organized." Collin, 
J. f dissenting, in People v. Crane, 214 N.Y. 154, 188, 108 N.E. 427, 438 (1915). 

1 80 


the actual legal relationships and institutions that make up the social 
order. In the twenty-five years since the publication of Ehrlich's book, a 
few of our law schools have taken hesitant steps in this field of legal 
source-material. Llewellyn's case book on sales, Berle's on corporate 
finance, and Powell's on future interests and trusts 3 point the way to a new 
type of case book and a new type of legal study. 

Ehrlich's concept of "living law" is as important to the law-maker as 
it is to the teacher or student. The law-maker, whether he sits in a legis- 
lature, on the bench, or in a law office, is interested only incidentally 
in the words of statutes and judicial opinions. He is interested primarily 
in achieving some practical result in the field of social relations. To do 
this, he must shun the "naive dilettantism, which is satisfied in its own 
mind that all that is necessary in order to abolish an existing evil is to 
forbid it" (p. 411). He must recognize "that the intent of the author oi 
a statute is a matter of absolute indifference so far as its effects are con- 
cerned. Once in force, it goes its own way" (p. 375). He must appraise 
the obstacles to enforcement, on the assumption that state-force, in the 
long run, can be used only against small minorities (p. 76). He must 
take account of an existing situation in society, as well as of an existing 
legal precept. If one is to consider the development or revision of a law 
of inheritance, it is not enough to know decided cases and the words oi 
statutes. "First of all it would be necessary to investigate all the living 
law that is contained in testamentary provisions, in parental divisions oi 
inheritance, in transfers of property during the lifetime of the donors, in 
settlements out of court by the heirs, and to discover its guiding prin- 
ciples" (p. 52). 

In this respect Ehrlich's volume developed a standpoint which Pound 
was at the same time brilliantly presenting in a series of articles in 
American law reviews. 4 Of major importance for the art of law-making 
is Ehrlich's analysis of the gap between "law in books" and "law in action" 
(to borrow the words of Pound), his analysis of the role of associations 
in making legal norms effective, his explanation of the inadequacy oi 
legislation for the protection of oppressed groups wherever such legislation 
was not supplemented by special administrative organs (pp. 368, 372) 
More generally, Ehrlich shows, laws and decisions owe their force tc 
social agreements. This fact sometimes appears in the form of the law, 

3, Llewellyn, Cases and Materials on the Law of Sales (1930); Berle, Cases ant 
Materials on the Law of Corporation Finance (1930); Powell, Cases and Materials OK 
the Law of Trusts and Estates (1932-33), 

4. See particularly, "Mechanical Jurisprudence" (1908) 8 Col, L. Rev. 605; "law ir 
Books and Law in Action" (1910) 44 Am. L. Rev, is. 



". . . the oldest statutes of the German kingdom, the Landfrieden, . . . 
had to be sworn to and had validity only for those who had sworn to 
them. . . . Even in England, a statute was agreed upon between King 
and Parliament like a contract*' (p. 148). Even where the form of the 
agreement is not observed, the measure of actual consent required for the 
maintenance of any legal rule is very great. "On pent tout faire avec les 
baionettes, excepte s'y asseoir" (p. 373). 

Finally, Ehrlich's approach is of value to the practicing attorney. 
The attorney who is more than a good lawyer is interested in forecasting 
to his client the future course of certain ventures and transactions, in 
weighing future risks, in avoiding future dangers. This means that he 
must know not only the state of the law at the moment but the tendencies 
of change within the legal order. He must know what aspects of the 
law are firmly fixed and what the "growing points" of the law are, and 
he must have a good idea of the probable directions of growth. This 
volume contributes towards such an understanding. It develops a theory 
of the growing points of the law, based largely on Holmes' acute ob- 
servations on the relation between law and fact in negligence cases (p. 
353). It develops a technique for determining the strength of sub-legal 
forces that are pushing to the surface of the law, and for determining 
when established rules of law have lost their social roots and thus stand 
ready to fall. All this is good medicine not only for legal formalists but 
for those realists who view law in atomic terms as the products of judicial 
hunches and belly-aches. As Pound justly remarks in his introduction to 
this volume, "What to the extreme realist seem individual behavior habits 
of individual judges, Ehrlich sees as reactions of the living law upon 
formulas and generalizations and precepts which do not or have ceased 
to reflect the inner order of significant associations and relations" (p. 

These contributions are substantial, despite the logical, historical, and 
ethical inadequacies in Ehrlich's teaching. In fact one may reject in toto 
the author's theory of the nature of law, courts, the state, society, and 
justice, and yet find guidance in the more concrete portions of the treatise. 
Ehrlich himself would deny this, I think. He insists that it is the definition 
of law as a product of courts and legislation that has condemned the 
science of law to poverty. But one does not have to define law as including 
social customs and institutions in order to recognize that these things 
are important for the understanding of law any more than physicians 
must define the human body as including its environment in order to 
recognize the influence of that environment. 



If, as Celsus observed some years ago, to know laws is to know force and 
power rather than words, 1 then the sociology of law, dealing with the 
impact of law upon human behavior, should bring light to lawyers, 
lobbyists, and statesmen concerning the nature of the materials with which 
they work. Above all, the sociology of law should provide instruments for 
surveying the consequences of particular rules of law and legal systems. 
Such a science might analyze the means by which legal rules and standards 
are made known to those of whom law observance is expected, the forces 
of public opinion, social pressure, and military power which tend to press 
men's actions into conformity with legal patterns, and the countervailing 
forces which impel disregard for law. Unfortunately such a science does 
not yet exist. Those who read Dr. Timasheff's book with the expectation 
of finding a key to a body of knowledge that may illuminate the social 
significance of legal rules and institutions will therefore be disappointed. 
Those, on the other hand, who would like to build such a body of 
scientific knowledge will find a very useful guide in Dr. TimashefFs survey 
of gropings and first steps towards a sociology of law. 

The preparation of such a guide is a task worth doing and well done, 
and it would be captious to criticize the author for not creating the science 
to which he promises us an introduction. Dr. Timasheff, however, does 
undertake to formulate the questions, concepts, and definitions within 
which a sociology of law is to be developed. It is therefore pertinent to 
inquire whether he has succeeded in this task. 

The general thesis of the volume is that law is the overlapping of ethics 
and power. Power is thought of as a general category including "despotic 
rule" and "legal order." Ethics is conceived not as a science but as a set 
of verbalized social forces controlling the objectives of human endeavor, 
and including rules of taste and fashion as well as legal principles. The 
area of overlapping is viewed either as that area of ethics which is en- 
forced by organized power, or, conversely, as that area of power which is 
decorated by ethical precepts. This thesis is elaborated by an analysis, 
largely historical, of the operations of ethical precepts (Part II), the 
mechanics of power-organization (Part III), and the relations between 
these two overlapping areas of social behavior (Part IV). 

i. Dig. 1:3:17. 

published as a review of N. S. Timasheff's An Introduction to the Sociology of Law 
in Harvard Law Review, 1940, 


In its essence, this view embodies the Blackstonian definition of law as 
"a rule of civil conduct prescribed by the supreme power in a State 
commanding what is right and prohibiting what is wrong." 2 Like Black- 
stone, Dr. Timasheff attempts to exorcise by definition those unfortunate 
situations in which sovereign power is used to command what is wrong 
and prohibit what is right. With equal logical force, an attempt was 
once made to do away with miserliness among the French by defining a 
sou as a coin to be given to the poor, and it has recently been suggested 
that criticism of the Republican Party might be practically banished 
by defining that organization as a party comprising all persons who be- 
lieve that the United States should remain a republic. Whatever may be 
the political usefulness of this form of reasoning, its scientific value is 
very slight. Most lawyers and students of law in this country will want 
to reserve the right to criticize a given rule of law as immoral or un- 
justified or contrary to public opinion while recognizing that the rule 
remains law so long as the courts enforce it. Those who take this view 
will reject the framework which Dr. Timasheff sets up for legal sociology, 
under which it is impossible to determine whether a rule enforced by 
the courts is really law until one has tested public opinion. These diffi- 
culties with the view that law is a branch of ethics were forcefully pre- 
sented by Hobbes, Bentham, Austin, Holmes, and Gray years before the 
modern "realists" appeared on the scene, but Dr. Timasheff appears to 
ignore such objections. 

One of the consequences of the author's attempt to define law without 
reference to courts or to the state is that a logical deduction from his 
definitions leaves a body of "non-state law" on his hands, which, if I 
correctly understand the author, exists as law quite apart from state 
action but is always recognized and supported by the state (p. 308). A 
set of definitions which denies the name of law to a statute enforced by 
the courts if it is contrary to prevailing ethical sentiments, and which, 
at the same time, accords legality to "non-state law," will not appeal to 
most American lawyers as useful. 

It would be silly to criticize Dr. Timasheff for using unpopular defini- 
tions so long as his usage is clear and consistent. What does merit 
criticism, however, is the author's insistence that definitions other than 
his own are logically impossible. Certainly he has not succeeded in show- 
ing any logical defect in the Holmesian definition of law as "prophecies 
of what the courts will do in fact." 3 Nor does he show that alternative 

2. Commentaries * 54-55. 

3. "The Path of the Law" (1897) 10 Haru. L. Rev. 457; Collected Legal Papers (1920), 
pp. 167, 173. 


conceptions of law commonly applied in anthropology are logically 
impossible. When, for instance, he asserts that it is "logically impossible" 
to define law in such a manner as to include the socially enforced rules 
of a primitive society that lacks courts, and at the same time to exclude 
social pressures of fashion and custom in the modern state (p. 278), 
he only betrays the narrowness of his Aristotelian logical horizons. If, 
for instance, one should conceive of law in relative terms as the most 
fundamental or the most effectively organized set of conduct-imperatives 
in any society, one might with perfect consistency hold that the law of 
primitive Cheyenne society is to be found in popular customs of revenge, 
reciprocity, and group-aid, but that the law of modern England is to 
be found centering in the activities of English courts. 

The pseudo-problems involved in the author's attempts to prove or 
disprove various definitions of "law," "morals," and other words which 
have many useful meanings, are matched by another set of pseudo- 
problems concerning the origins of legal institutions. Thus Dr. Timasheff 
devotes a good deal of attention to the academic riddle: "Which came 
first, criminal law or civil law?" and apparently awards the palm to the 
former (p. 70). Nowhere, however, does Dr. Timasheff offer an example 
of a rule of criminal law that does not include a civil aspect. One cannot 
commit the crime of larceny if there is no law of property to determine 
when a man is taking what is not his own, or the crime of adultery if 
there is no law of marriage, or any crime at all if there is no law of 
persons fixing responsibility upon nations, or clans, or families, or in- 
dividual human beings, or human beings who have achieved a specified 
minimum age and level of mentality. 

The same atomistic viewpoint which enables Dr. Timasheff to look 
upon rules of criminal law as if they were existing self-sufficient realities, 
rather than procedural aspects of a legal system, underlies the view of 
statutes and legal rules as physical realities which have each a "true" 
meaning or existence apart from the interpretations or misinterpretations 
of judges, lawyers, and clients. Surely a sociologist should see that the 
words of a legal rule have meaning only in so far as a context of social 
action gives meaning. Perhaps such a relational view would help the 
author to deal more effectively with the problem of law and custom. 
Instead of searching for relationships along a mythical or hypothetical 
axis of historicity ("How long must custom be custom before it becomes 
law?") it would be illuminating if the author were to inquire, "How 
far can we get in stating any rules of law without invoking or assuming 
customs to define our legal elements, e.g., reasonable man, ordinary 


care, prudent investment, common use of language, reasonable construc- 
tion of a statute?" 

In dealing with the origin and development of law, our author again 
exhibits a strange passion for the unknown past as a source of explana- 
tion (pp. 282 et seq.). Dr. Timasheff is frank enough to recognize that 
explanation in these terms is of little scientific weight, but it apparently 
never occurs to him that the origin of courts and of law is something 
that can be contemporaneously and scientifically studied in the establish- 
ment and functioning of the National Labor Relations Board, or the 
Board of Tax Appeals, or in the transformation of social forces from 
sub-legal to legal forms that marks the enactment of any statute estab- 
lishing new agencies of government. Certainly we know a good deal 
more about how lobbies operate today to create a court or administrative 
body or rule of law where none existed than we know about the politics 
of the court of Hammurabi. 

Perhaps all these defects have a common root in an Aristotelian 
absolutism which assumes that there is only one correct definition for 
a given term, only one true meaning in a given law, and only one 
absolute historical origin for a given institution. The same rigidity 
characterizes the author's insistence that there is only one principle by 
which social forces can be harmonized, i.e., the principle of absolute 
hierarchy (p. 196 et passim). The attempt to prove this thesis by arguing 
that all states with multiple sources of authority ultimately break down 
(p. 198) is logically fallacious since no state embodying the hierarchical 
principle has yet endured forever or is likely to do so. And certainly, 
the very unhierarchical structure of constitutionally limited federalism 
that obtains in Switzerland and in this country under which sovereignty 
is relative to the matter under discussion and may rest with any one of 
various agencies or, in certain reserved matters, may not exist at all- 
seems as durable today as any of the world's autocracies. 

Despite the defects inherent in his approach, Dr. Timasheff does 
present a number of positive contributions to our knowledge of legal 
sociology. Particularly interesting are his use of the concept of probability 
in answering the more extreme "realists" who deny the existence of 
stable legal rules (pp. 315 et seq.), his conception of international law 
as "formed by similar legal rules of different States, insofar as they refer 
to interstate relations" (p. 261), and his suggestions with respect to 
experimental methods in legal sociology (pp. 39-41), 

The volume exhibits an encyclopedic familiarity with the European 
literature in the field of legal sociology. Unfortunately, the author's 


acquaintance with the work done in the United States during the present 
century is considerably less than encyclopedic. The pioneer work in legal 
sociology which is associated with the name of Brandeis is entirely 
ignored, as is the current of research in the social background of law- 
breaking which begins with the work of Pound, Frankfurter and their 
associates in the Survey of Criminal Justice in Cleveland. Brooks Adams, 
Gustavus Myers, T. R. Powell, Cook, Oliphant, Clark, Edgerton and 
Boudin are likewise ignored, and Llewellyn's constructive work on 
sociological aspects of law (e.g., the law of sales) is unmentioned, al- 
though reference is made to some of his polemical writing. This weak- 
ness is perhaps explained by the fact that the first draft of the present 
volume was prepared in Petrograd in 1916-1920. One may hope that 
further acquaintance with current American developments in legal 
sociology will make it possible for Dr. Timasheff to offer either more 
vigorous criticism of our sins or more fulsome praise of our virtues. 


Although this volume does not purport to be a serious contribution 
to legal science or to legal philosophy, it is full of the mellow wisdom, 
the gracious erudition, the provoking phrase, and the human sympathy 
that make almost anything that Max Radin says or writes worth pon- 
dering. It presents a series of lectures on two texts: the dictum of Coke, 
J., "Reason is the life of the law," x and the dissenting opinion of 
Holmes, J., "The life of the law has not been logic: it has been ex- 
perience." 2 

If experience is the sum to which we chalk up all unprofitable and 
unpleasant things that happen to us because of our miscalculations, 
there is some sense in opposing experience to logic or reason. In terms 
of that opposition, one might say, paraphrasing Hobbes, that experience 
without logic is "nasty, brutish and short/' But the experience of which 
Mr. Radin speaks in these lectures is something broad enough to include 
logic as well as religion, art, and friendship is, in fact, no more lim- 
ited than life itself. Thus, the assertion that the life of the law is 
experience turns out to be a logical tautology: the life of the law is life. 
And surely no logician could deny that. 

1. Institutes; /, p. 138. 

2. The Common Law (1881), p. i. 

Published as a review of Max Radin's Law as Logic and Experience in Harvard 
Law Review, 1941. 



Mr. Radin is too good a logician to accept the popular antithesis be- 
tween logic and experience as contraries (white and black) or as contra- 
dictories (white and not white). Rather, logic and experience are viewed 
as divergent directions in analysis. The shape of anything that lies within 
the field of law may be described, therefore, in terms of distances from 
"our ordinate of logic and our abscissa of experience." Upon this frame- 
work, Mr. Radin proceeds to analyze the various compounds of logic 
and experience that constitute law, evidence, arbitration, punishment, 
and justice. 

Applying these coordinates to the nature of law, Mr. Radin demon- 
strates that the identification of law with "obligation" is entirely er- 
roneous, that indeed freedom from any given obligation is as important 
a legal fact as any other fact. And since duty and freedom or privilege 
are contradictories, as Radin points out by way of correcting Hohfeld 
who called them opposites, there is no room for any conduct outside of 
these legal categories. The law then covers the entire field of human 
conduct. As Mr. Radin is careful to point out, it covers nothing else 
despite treatises on "the law of oil and gas" and "the law of automobiles." 

In dealing with the problem of evidence, the second of these lectures 
gives full credit to the role of logic and scientific method. The purpose 
of a trial, we are told, is essentially the purpose of scholastic logical 
method "to attempt to solve apparent contradictions, to harmonize 
discords, to distinguish between apparent similarities" (p. 45). The law 
must rely on science in its effort to attain the truth, although in the com- 
merce between law and science, science, no less than law, may draw a 
profit. The limitations upon the use of logic and scientific method in 
the law, Mr. Radin shows, are derived primarily from limitations of 
available energy, time, and procedural machinery. 

The lecture on arbitration and judicial decision, although persuasive 
in its presentation of the growing importance of arbitration, leaves un- 
answered the basic question: Why is arbitration more effective than legal 
procedure in certain type-situations? I suspect that the answer is to 
be found in an analysis of the class relationships among disputants. 
The wolf and the lamb have nothing to arbitrate because neither is in- 
terested in the continued existence of the other. Differences within the 
flock and the pack are readily settled, however, because the parties have 
to live together once the conflict is settled. The appraisal of arbitration 
in terms of class relationships is a promising task of legal scholarship 
to which the observations of this volume may give some stimulus. 

Mr. Radin is not particularly successful, I think, in applying his 
ordinate and abscissa to criminal law. What he attempts to develop is 


the suggestive antithesis that in civil matters we ought to interest our- 
selves primarily in the future consequences of a decision, rather than 
in reconstruction of past action, but that in criminal cases the law ought 
to stick rigidly to reconstruction and classification of past action and 
ignore the future, including the probable effect of the decision upon the 
accused and upon society. Most of us will share the author's lack of 
sympathy for the practice adopted by dictatorships, old and new, of 
punishing people for offenses they are likely to commit in the future. 
But if this is true in criminal matters, is it not equally true in civil mat- 
ters? What difference to a labor union, seeking to prevent strikebreakers 
from taking its members' jobs, whether the union is fined ten thousand 
dollars in a criminal proceeding or mulcted in damages to the same 
amount in civil proceedings? It seems to me that Mr. Radin's distinction 
between the purpose of civil law and the purpose of criminal law errs 
in failing to recognize that the distinction between the civil and the 
criminal is one not of substance, but of procedure. Is there any rule of 
civil law which cannot be enforced by criminal proceedings, or any rule 
of criminal law that does not presuppose civil rights? Can there be 
robbery if there is no law of property? Conversely, what would rules and 
decisions concerning property mean if criminal penalties could not be 
invoked, at some stage, in their enforcement? If there is merit, and I 
think there is, in Mr. Radin's comments on the importance of special 
safeguards in criminal law to prevent the punishment of the innocent, 
it is because what we call punishment is the product of a peculiar 
procedure, in which the injured party is also the judge. The identifica- 
tion of the state as, at one and the same time, injured party, lawmaker, 
judge, and executioner is the peculiar characteristic of criminal law 
which makes the problem of safeguards so difficult and so important. The 
author's observations, like many other discussions of the function of 
criminal law, would gain in clarity if placed in this procedural context. 
The final lecture, dealing with the nature of justice, is, I think, the 
least persuasive. "To secure a good society . . . cannot be the purpose of 
law/' we are told, "for the simple reason that it is the purpose of the 
entire mechanism of political and social organs" (p. 145). Unfortunately, 
we are not told why law may not pursue a purpose to which other social 
institutions are also dedicated. Somewhat dogmatically, by playing on 
the ambiguity of "the purpose of law/' which sometimes means the actual 
purposes of lawyers or judges and sometimes the social values achievable 
through law, the author places narrow limitations upon the "proper 
province" of law: "Not justice or a good society, therefore, but con- 
venience of commercial practice, appeasement of individual quarrels, 



or an increase of good will among competitors, if that is possible, is 
the purpose of law if we examine its actual operation." 

This narrowness of ethical standards may be sensible if one thinks 
of law exclusively in terms of contracts and collisions. It is perfectly 
natural for law professors to think of law in these terms, for by elimi- 
nating from view what the author calls "the piffling particularity of an 
ephemeral statute" the wisdom of the law professor becomes eternal, and 
even acquires an interstate character, so that many generations of stu- 
dents from many parts of the country can sit at his feet with pleasure 
and profit. It is only fair, however, to note that the term "law" can 
mean something more than a mode of judicial dealing with contracts, 
collisions, and homicides, and that it has meant much more than this to 
the utilitarian and sociological jurists whom Mr. Radin criticizes for 
the breadth of the ethical standards they apply to law. If law includes 
such things as neutrality and labor legislation, freedom of the press, 
immigration laws, and the right to vote, then the narrow standards of 
legal criticism which Mr. Radin proposes are largely irrelevant and 
certainly inadequate. Indeed, this inadequacy is clearly demonstrated 
by the analysis of the scope of law given in the first of these five lectures. 

Historically, the attempt to restrict the purposes served by law to 
narrow, traditional objectives has been characteristic of conservative 
opposition to legal reform. It was in protest against the conservative 
view of law as a crystallization of the wisdom of the past that jurists 
like Bentham, Von Jhering, and Roscoe Pound (thirty years ago) ad- 
vanced the liberating conception of law as a means to the attainment 
of a better society, as a form of social engineering in the service of basic 
social values. Today, however, when the champions of humanitarian 
ideals are everywhere on the defensive, the distinction between the lib- 
eral and the conservative, in legal outlook, grows more tenuous. Both, 
as allies defending values of civilization threatened by brute force, are 
more concerned with the protection of democracy and constitutional 
liberties than with the enactment of new social legislation. Both, there- 
fore, are inclined today to view the law as a heritage rather than as a 

Max Radin's trumpet call for a retreat from the intellectual outposts 
of legal reform is perhaps symptomatic of this defensive mood, which 
has descended upon the law as upon other fields o thought. One may 
appreciate the value of Radin's new outlook in days when liberals are 
on the defensive, and at the same time hope that the conditions which 
make this exposition worth reading will soon pass away. 



Most of our judges and law professors spend a large part of their lives 
justifying or criticizing various human arrangements known as legal 
rules or decisions, and yet when the circuit of their tasks is interrupted 
by an inquiry into just what it is that they are doing when they justify 
or criticize, they are apt to react with more heat than light. For the 
intellectual fashion of our times requires them to hold that justification 
and criticism are matters of personal emotion and uncertainty, while the 
dictates of their profession require them also to maintain that what they 
are doing has a firm basis in certain and objective truth. 

Faced with the modern version of Samson's riddle how to draw the 
honey of objective certainty from the lions of passion and emotion 
our jurists have offered three divergent answers, none of which can 
command much respect. Some have denied that there can be any cer- 
tainty or objectivity in law, but the most energetic of these, upon don- 
ning judicial robes, has had to profess an appeal to something more than 
the uncertainties of his own subjective emotions when he has reversed the 
decision of a lower court. At the other extreme, there are a few judges 
and law teachers who, under the influence of Thomism, Marxism, or 
some other absolutistic metaphysics, insist that the certainties of law are 
properly derivable from the certainties of morality. But the great ma- 
jority of those who write professorial texts or judicial opinions try to 
save the certainty of law and the uncertainty of ethics by denying that 
law and ethics have any necessary connection with one another. 

Out of this effort to separate law from the secret juices that give it 
life there has sprung a maze of pseudo-logics, crypto-rationalisms, and 
nominalistic positivisms that have in common only a common sterility. 
Law is given protection from contamination by human needs through 
the age-old method of discreet nomenclature. The facts one dislikes are 
called theories; the theories one cherishes are dubbed facts. Law must 
retain its integrity by steering clear of social "theory." Many years ago 
Holmes wrote of this attitude: "Perhaps one of the reasons why judges 
do not like to discuss questions of policy, or to put a decision in terms 
upon their views as law-makers, is that the moment you leave the path 
of merely logical deduction you lose the illusion of certainty which makes 
legal reasoning seem like mathematics. But the certainty is only an 
illusion, nevertheless." l 

i. "Privilege, Malice, and Intent" (1894) 8 Haru, L. Rev. i, 7, 

Published as a review of Clarence I. Lewis' An Analysis of Knowledge and Valuation 
in Harvard Law Review, 1948, 



Professor Lewis' latest book addresses itself to the basic question of 
how the objective certainty that we demand of justice can be derived 
from the emotional vagaries of subjective valuations. The answer given 
to this question marches for 362 pages through preliminary considera- 
tions of logic and epistemology before it comes to grips with the problem 
of values; the last 190 pages are devoted to a closely reasoned analysis 
of this problem. The volume embodies a large part of the life work of a 
distinguished teacher and a patient thinker and is so written that a 
patient reader would have to devote proportional time and effort to an 
adequate understanding and fair appraisal of the work. Yet if Holmes, 
who thought that Kant should have been able to explain his main ideas 
to a young lady in ten minutes after dinner, 2 had made a similar demand 
upon Lewis, it seems to me that he might have responded in something 
like these words: 

Subjectivism in ethics, the notion that normative statements are of 
merely emotive significance, is a pathological development arising out 
of misunderstanding of modern science. This sickness of contemporary 
thought can be cured by recognition that there is a subjective element 
in value judgments, but in exactly the same way there is a subjective 
element in judgments of heat, cold, light, color, weight, pressure, and 
everything else that is the object of human experience. No scientific 
statement would have any meaning if it could not be tested by such 
subjective personal experiences as our experiences of color, pressure, etc. 
Indeed, the meaning of any scientific statement consists essentially of 
the summarization or prediction of such experiences, past, present, and 
future, actual, probable, and possible. What saves science from being a 
planless succession of daydreams is that there are connections among 
our own and other people's subjective experiences which are not always 
too abstruse for human understanding. Consequently, men, or at least 
some men, are able to think about, anticipate, and make conscious use of 
a world beyond the egocentric here-and-now. Such understanding and 
manipulation go beyond merely subjective impressions, in ethics as in 
other fields of knowledge. Thus, "evaluations of things are objective and 
cognitive, and are not relative to particular persons or circumstances or 
occasions in any fashion which differentiates them from attributions of 
other properties to objects" (p. 458). 

All this, Lewis would say, is very far from the transcendentalist posi- 
tion that ethical truth is independent of subjective experience. But 
ethical truth may be dependent upon subjective factors without being 
identical with them. For whenever we go beyond the immediacy of felt 
experience to think or say anything about it we run the risk of error. 

2. "Holmes-Cohen Correspondence/' ed. by F. S. Cohen, 9 /. Hist. Ideas 3, 22 (1948). 


And this is as true of values as of colors or weights. "At least half of 
the world's avoidable troubles are created by those who do not know 
what they want and pursue what would not satisfy them if they had 
it" (pp. 372-73). However, although the subjective element is necessary 
in all knowledge, knowledge is more than immediate perception. Knowl- 
edge is, for Lewis, a part of life and therefore a part of human action. 
Even such knowledge as cannot be refuted by any experience we may 
ever have for example, our knowledge of laws of logical or mathe- 
matical inference, or our knowledge that gold is metallic, or that men 
are able, under certain conditions, to think always involves a subjec- 
tive element in that such "analytic truth" is a function of our own defi- 
pitions, and one may attach to words "any self-consistent signification 
that one may choose" (p. 16). If we define gold as a certain metal, then 
we know in advance that whenever and wherever gold may be found we 
shall find a metal, and no fact could persuade us of the contrary; so, 
with the a priori truths of logic. In short, even the most impersonal and 
objective statements we can make involve a subjective element. 

Subjectivists in ethics go wrong, Lewis thinks, in not taking their 
subjectivism seriously enough, in using it, perhaps, only as a weapon 
against moral ideas which are in conflict with their own secret moral 
beliefs. If they took their subjectivism seriously, and applied it system- 
atically to all fields of experience, they would find man's "egocentric 
predicament" (to use Perry's phrase) all-pervasive. Being all-pervasive, it 
cannot serve as an excuse for separating the uncertainties of ethics from 
the pretended certainties of law, economics, or physics. Life is too deeply 
tinged with the subjective, the uncertain, and the precarious to leave 
any sense in such a separation. 

If this is a fair summary of what Lewis is saying, then he has shown 
that the principle of polarity can make a solid contribution to our think- 
ing about ethical knowledge and knowledge in general. If any substantial 
number of our juristic thinkers have the stamina to read through the 
Lewis treatise, we may find in the juristic literature of coming decades 
a less confident reliance upon the subjectivity of morals and the ob- 
jectivity of everything else than we have found in the judicial opinions 
and professorial treatises of the past century. And one may hope that 
in the field o ethics Lewis' volume will stimulate a revival of the effort 
to explore the geography of human enjoyments and sufferings. A useful 
geography of values might do for the law reform of the coming century 
what the work of Bentham did for the century of law reform that he 
initiated. But one must admit that Lewis' book is not likely to have 
such an effect unless the author's colleagues in ethical fields pay more 
respectful attention to his ideas than he has paid to theirs. 



Perhaps it is only the vocational prejudice of an old law review editor 
that would notice the number of times that Lewis advances ideas de- 
veloped by coworkers without giving them credit Bertrand Russell 
and Morris R. Cohen, who have said most of what Lewis has to say 
about the nature of value and the scientific method, are not mentioned in 
the index. And perhaps it would be captious to criticize Lewis for mis- 
understanding the position taken by some of his opponents; for after 
all, no two philosophers ever quite understand each other. (This re- 
view surely constitutes no exception.) But more serious than any failure 
to mention thinkers he follows or to understand those he attacks is 
the author's failure to take advantage of the work of contemporaries 
who have found ways across barriers that he still regards as insurmount- 

The chief purpose of this volume is to establish the possibility of sys- 
tematic ethical judgments comparable to the systematic connected judg- 
ments of natural science. In this task Lewis finds two special difficulties: 
the supposed chasm between the "good" and the "right," and the issue 
of the commensurability of values. As to the former, the work done on 
the basis of modern logic in establishing the interconnection of "good," 
"bad," "right," "wrong," and all other moral categories is overlooked by 
Lewis, who dismisses logical inquiries into this subject as "useless ped- 
antry" (pp. 511, 551) a strange epithet from one of America's top-flight 
logicians, a writer of abstruse tomes who likes to denounce "argument 
by epithet," and who is surely sophisticated enough to see that "useless 
pedantry" is only a dyslogistic equivalent of "priceless teaching/' The 
result is that on the last page of his journey Lewis stops at what he 
views as an unbridgeable chasm between goodness or value, which he 
considers "empirical," and Tightness or justness, which he leaves in a 
nonempirical realm of complete mystery (p. 554). 

Equally disappointing is Lewis' failure to take account of the work 
of fellow logicians who have shown that the traditional objections to 
quantitative views of happiness or suffering are based upon an invalid 
conception of quantity. One does not need instruments to know that the 
suffering of a concentration camp is greater than the suffering involved 
in the execution of a dozen Nazi murderers, any more than one needs 
instruments to know that there is more nourishment in a pound of roast 
beef than there is in two pounds of lettuce, or that spading and culti- 
vating half an acre involves more work than picking melons therefrom. 
Without such sensible recognition of "more" and "less" in our experi- 
ence which is basic to Lewis* view of knowledge none of our for- 
mulas or instruments for measurement would make sense. Of course, 
measurement of more and less involves an element of conviction, but 



this is as true of calories in dietetics and of ergs or foot-pounds of work 
in physics as it is of enjoyment or suffering. And, according to Lewis, 
this element of convention is present not only in measurement but in any 
application of any concept to any experience (p. no). 

For Lewis to give up as hopeless the effort to group and compare 
value experiences (pp. 488-95) something that he tries very hard to 
validate (pp. 541-51) is truly a pity. Men knew enough to com- 
pare tasks and food values before the necessary logical formulas for the 
process were worked out; otherwise they would not have survived the 
hostile forces and predicaments that nature poses. It does not take a 
superhuman faith to suppose that men can weigh the enjoyments of the 
many against the enjoyments of the few for a few more years or cen- 
turies until our scientists have devised the calories or foot-pounds or 
ergs to measure human suffering and human happiness in more exact 
and refined ways than those of common sense. As a wise French jurist 
has said, it is not necessary to throw to the dogs all that is not fit for 
the altars of the gods. 

Despite these curable lapses in Lewis' effort to establish the possibility 
of systematically interconnected ethical observations and judgments, the 
argument of the volume moves with an irresistible pachyclermal force. 
Myriads of actual or possible objections or misunderstandings are always 
being pushed out of the path of the argument. Indeed from a philo- 
sophical, as well as a literary, point of view, it may be said that Lewis 
overargues his case. Surely it is not necessary to argue that "knowing 
is for the sake of doing" (p. 3) a view which most wise men in the East 
and many wise men since Aristotle in the West have found it possible 
to reject in order to establish the fact, which is central to Lewis' 
main thesis, that empirical knowledge is always relevant to doing and is 
either confirmable or disprovable by experience, and that intellectual 
construction whether of statutes or of rules and concepts of natural 
science involves constructing as well as construing. In this sense, at 
least, action is an essential part of understanding, whether the under- 
standing be directed to cabbages or to kings. 

The demonstration that we do not suddenly move from an objective 
world to a subjective world when we move from the appraisal of cab- 
bages to the appraisal of kings is one of the outstanding demonstrations 
of a philosophy that has digested the meaning of modern logic and opera- 
tional method. To that logic and method no living American philoso- 
pher has made larger contributions than has Professor Lewis. His Mind 
and the World Order is one of the great philosophical books of the cen- 
tury. The present treatise is a worthy sequel to that work. 




Huntington Cairns has provided lawyers, judges, and laymen with a 
long-needed guide to the thinking of professional philosophers on the 
perennial problems of the law. I think it safe to say that no better in- 
troduction to the subject has ever been written. Indeed, the book is so 
good that one's chief criticism must be that there is not more of it. 
Thirteen major philosophers are included if we accept as valid our 
author's characterization of two literary lawyers (Cicero and Bacon) as 
major philosophers. A good many important philosophical figures are 
omitted. No attempt is made to convey the philosophical thinking of 
jurists. The problem of integrating or interrelating the thirteen chosen 
philosophical perspectives on law is expressly put aside. What we have, 
then, is an excellent collection of essays expounding the thoughts of 
thirteen philosophers on legal issues. It would be captious to criticize 
these essays because they do not attempt to be something else. 

The first character in Mr. Cairns's pageant of philosophers is Plato. 
"Western jurisprudence," we are told, "has consisted of a series of foot- 
notes to Plato'' (p. 76). This, perhaps, is more a statement about the 
making of books than about the development of ideas. Socrates and the 
pre-Socratics could also be comprehensively footnoted if we only had 
the texts to footnote. But in the chapter on Plato, Socrates appears only 
as a defendant in a law suit and as a character in Plato's dialogues. 

A brilliant and sympathetic account of Plato's views on law and justice 
is marred only at one point by lack of sympathy for Plato's socialized 
morality. After pointing out the close parallels between Plato's and 
Bentham's views on the role of a legal code, Mr. Cairns regretfully com- 
ments that the rational theories of punishment they both profess, based 
on the objectives of deterrence and reform, break down because they 
justify the punishment of innocent persons in cases where such persons 
are believed to be guilty or are generally in need of social overhauling. 
But the fact is that any criminal code devised and administered by fallible 
creatures is likely to involve the punishment of some innocent people who 
are mistaken for criminals. Such occurrences would not, to Plato or to 
Bentham, afford a valid reason for rejecting a legal system as unjust. If, 
in the long run, the system advances human welfare, then the sacrifice of 
some individuals for the general welfare may well be viewed as one of the 
inevitable products of human finitude. To view such cases as marking a 

Published as a review of Huntington Cairns' Legal Philosophy from Plato to Hegel 
in Journal of the History of Ideas, 1949. 


breakdown of Plato's and Bentham's social approach is to introduce a 
very different concept of individualistic justice, which Mr. Cairns might 
well defend but which, instead, he assumes without argument or 

Where Plato and Aristotle seem to diverge in their lines of analysis, 
Mr. Cairns is definitely on Plato's side. This shows itself in an inclination 
to find sensible meanings in Plato's words, even if it becomes necessary to 
give a word like "harmony" a figurative meaning, while an Aristotelian 
sentence is sometimes given a literal construction and dismissed as obvious 
error. Thus, the Aristotelian idea of "measure" in reward and punish- 
ment one of the great humanizing ideas of western civilization is dis- 
missed with the rather cavalier comment: "That it was impossible to 
measure the immeasurable apparently did not occur to him" (p. 122). 
Has not the whole progress of western science rested on the development 
of ways of measuring what was once immeasurable, e.g. temperature, 
light, sound, and energy? And is there no hope that the humanitarian 
application of Bentham's hedonic calculus, which provided a basis for 
most of the legal reforms of the past century, can be pressed further as 
we learn more about the nature of reward and punishment, or more 
generally, of human enjoyment and suffering? 

Mr. Cairns's effort to prove that Cicero was a philosopher with an origi- 
nal contribution to legal philosophy (p. 130) is not particularly con- 
vincing. The assignment of originality to any author generally tells us 
more about the limitations of the assignor than about the achievements 
of the assignee. In this case the ascription of Ciceronian and Hellenistic 
origins to the basic idea of human equality appears to be based upon 
unawareness of the pre-Hellenic development of this thought in the 
Judaeo-Christian tradition, and especially in the prophetic works of 
Isaiah, Amos, and Malachi. 

With Francis Bacon, as with Cicero, Huntington Cairns does his best 
to make a philosopher of a lawyer, but the effort is not very convinc- 

The chapters presenting the legal philosophies of St. Thomas, Hobbes, 
Spinoza, Locke, and Leibniz are among the most illuminating chapters 
of the volume. 

The account of Thomistic legal philosophy is especially noteworthy 
because, in recognizing that St. Thomas presented "the first systemati- 
cally complete philosophy of law" (p. 203), Mr. Cairns does not fall for 
the usual stereotypes which are so often applied to scholastic philoso- 
phers. Thus, he carefully notes St. Thomas 1 recognition of "the relativity 
of human behavior" (p- 182) and points out many ways in which the 



later thinking of Bentham and Von Jhering was anticipated in Thomis- 
tic realism. 

The problem of civil liberties and the limits of state power over the 
lives and thoughts of private citizens has, in recent years, brought forth 
much thinking, and even more writing. What Hobbes, Spinoza, and 
Locke have to contribute to our reflection of these issues is presented 
by Mr. Cairns with great clarity. In Hobbes is revealed (with all the 
charm that distance lends) the clarity that runs through the later think- 
ing of Austin and Holmes and their followers in modern jurisprudence; 
out of this clarity emerges a realistic view of the evils of war and anarchy 
which government is instituted to circumvent. In Spinoza is revealed the 
complementary and equally realistic (Aristotelian) view of the evils of 
government itself, which Hobbes and some of his modern followers 
(e.g. Holmes and Frankfurter) have rather tended to overlook. Out of 
Spinoza's realistic recognition of the corruptibility of officials, Mr. Cairns 
traces the rise of the doctrine of civil liberties and restraints on govern- 
ment which, through the mediation of Locke, became so powerful a 
force in the development of American constitutional theory. 

Leibniz's contributions to our understanding of legal system, legal 
science, and legal education, and Hume's contributions to our under- 
standing of why men obey and disobey the law, are subjects of two of 
the most original chapters in this volume. 

The concluding chapters are particularly significant not so much for 
what they say about the views of Kant, Fichte, and Hegel, which has 
mostly been said before, but for the imaginative way in which Mr. 
Cairns has identified the echoes of their thoughts in the thinking of our 
courts and legislatures. 

Mr. Cairns has done a beautiful job of translating the words of his 
chosen philosophers from Greek, Latin, and German into English. This 
reviewer is not part of the audience which the author has in mind when 
he says, for example, that his obligations to the translations and com- 
mentaries of England, Grote, Shorey, Taylor, Nettleship, and Ritter will 
be "obvious." But two all-too-popular mistranslations deserve correction. 
So far as I know, Aristotle never said that man is a social animal 
(p. 377). He did say that man is a political animal,* which has rather 
different overtones and implications. And Kant did not say that the 
legislator must be "rationally viewed as just and holy" (p. 45), although 
these are the words of Hastie's bowdlerized translation. 2 What Kant said 

1. Pol. I, 2, 

2. "Science of Right," Part II (Public Right), sec. 49^ in Kant's Philosophy of Law, 
tr. by Hastie (1887). 



was simply that the legislator is holy ("der Gezetzgeber ist heilig"}, a 
statement which goes far to explain why Kantian legal philosophy (in 
its unadulterated form) has made so little appeal to realistic-minded 
Americans and their British cousins. 

That Mr. Cairns should have felt bound to end his volume with 
Hegel provides food for thought. "J UI i s P rU( tence/' we are told, "which 
was at one time the daughter of philosophy, is now not even a stepchild" 
(p. 567). Whether the lady in question was murdered or orphaned, Mr. 
Cairns does not say. But whatever the explanation, the fact remains that 
for almost a century after the publication of Hegel's Grundlinien der 
Philosophie des Rechts (1821) very little attention was paid by profes- 
sional philosophers to the perennial problems of the law on which all 
major philosophers from Socrates to Bentham and Hegel (with the 
possible exception of Descartes) had centered a large part of their 

One of the founders of this Journal undertook to trace, some forty 
years ago, 3 the intellectual currents which diverted philosophy from its 
early and long-sustained concern with law and fixed its gaze on more 
celestial subjects, such as epistemology, ontology, axiology, and semantics. 
Among those currents, the rock of specialization has exercised a domi- 
nant influence. Since the years of Hegel's youth, jurisprudence (like 
physical science) has developed into a considerable body of specialized 
thinking. The mastery of its literature stands as a forbidding obstacle to 
the professional philosopher who would think philosophically about 
legal issues. It is much easier for the modern philosopher to make a 
specialty of things that nobody else knows much about, such as the 
nature of knowledge, value, or the universe, and to say, "We, too, have 
a specialty, on which we can speak without challenge from the un- 

Some day, we may hope, a sequel to this volume may be written, per- 
haps by Mr. Cairns himself, to trace contributions to our understanding 
of the law that have come from post-Hegelian philosophers who have 
refused to exclude law from the field of philosophical vision. That it is 
possible to master the literature of jurisprudence without succumbing to 
jurisprudential provincialisms and without losing one's philosophic 

3. M, R. Cohen, "The Conception of Philosophy in Recent Discussion/* Journal of 
Philosophy, VII (1910), 401; "Jurisprudence as a Philosophical Discipline," ibid., X 
(1913), 225. The former article has recently been reprinted in M. R. Cohen, Studies in 
Philosophy and Science (Henry Holt, 1949), 33-47. The latter has been reprinted in 
Reason and Law: Studies in Juristic Philosophy (Free Press, 1950). 



vision or logical acumen is shown by the work of Huntington Cairns 
himself, not less than by the work of Morris R. Cohen and T. V. Smith. 

As is the custom among historians of philosophy, Mr. Cairns has por- 
trayed a series of thirteen different views and "put aside immediately the 
attractive thought that the fundamental truths of the various philoso- 
phies of law should be sifted out and then combined into one har- 
monious whole" (p. 557). The result is to leave the reader with the 
impression that no progress is possible in philosophy, and that all 
philosophers are in perpetual and hopeless disagreement with each 

But why assume that [the statements of philosophers] contradict each 
other? If Aristotle ever said, "It is raining," and if Hegel ever said, 
"It is not raining/' one could establish a contradiction only by reifying 
the "It" in each statement and assuming that there is a single and 
absolute "It" in the universe. May we not more reasonably assume that 
the field of legal activities and legal ideals is sufficiently broad and 
diversified so that law may be a "form of social control" and a "rule of 
conduct" and a "relation between human beings," all at the same time? 
And may we not go further and note that from different historical 
perspectives, different aspects of the field will come into focus and 
different points of heaven will appear at the zenith? Is Hobbes's explana- 
tion of the ways in which civil war and disorder may be avoided really 
incompatible with Spinoza's explanation of the conditions under which 
civil liberties may be enjoyed? May not progress in philosophy, like 
progress in chess or music, consist in the continued elaboration of 
hitherto unseen possibilities? 

We are, each of us, bound to choose our own definitions and stand- 
points, and to see the world through our own eyes. But may we not, at 
the same time, make allowance for the fact that the rest of the world, 
poor souls, will have to see the world through other eyes and from other 
standpoints, in respect of space, time, and valuation? Logical contra- 
diction can exist only within a single system of definitions. One philoso- 
pher could contradict another philosopher only if he first accepted all 
the latter's definitions. I do not think Mr. Cairns has established that 
any two of his chosen philosophers have agreed on all their definitions. 
It follows that he has not established any logical contradiction among 
the views that he characterizes as contradictory. 

We are all blind men reporting on an elephant, and if each reporter, 

* [Ed. note: A quotation from Mr. Cairns' book supporting this point has been 
omitted, since it is given in full above, in "Field Theory and Judicial Logic," p. 121.] 



instead of contradicting his fellows, would carefully note the point and 
direction of his own approach, we might piece together a good over-all 
idea of the size and shape of the beast. Perhaps, some day, Huntington 
Cairns will work out the formulae of translation that will help us piece 
together his thirteen reports on the Elephant called Law. 


The Indian's Quest for Justice 

Anthropology and the Problems 
of Indian Administration 

THE WORD anthropology is a red flag to the regular Indian Service ad- 
ministrator. To him it generally connotes a breed of people that look 
upon Indians as museum exhibits to be measured and catalogued rather 
than as human beings faced with the universal human problems of earn- 
ing a living, keeping healthy, raising a family, getting along with neigh- 
bors, and enjoying life. 

This feeling of distrust is likely to be reciprocated. A good many an- 
thropologists, taking a most unanthropological view of the customs and 
thought-ways of Indian Service officials, regard such officials not as part 
of an historical process of acculturation but merely as "disturbing factors" 
in the search for anthropological truth. 

Fortunately there are some signs today that this traditional hostility is 
breaking down. Here and there in the Indian Service a student of an- 
thropology has shown some Indian Service employee how to solve some 
concrete practical problem of social adjustment in terms of ethnological 
factors which had escaped the notice of the practical administrator. At 
the same time, a number of American anthropologists have finally re- 
pudiated the traditional assumption that anthropology can be studied 
only in the purity of the past and that things modern are not anthro- 
pological. Many have come to suspect that the "breakdown of culture/' 
which has seemed to so many anthropologists to mark the end of anthro- 
pology, has in fact been going on through all cultural history, and that 
the dynamic aspects of culture in the process of change are worthy of 
scientific study. 1 

i. See, for instance, Clark Wissler, "European and American Indian Cultures in 
Contact," in E. B. Reuter, Race and Culture Contacts (1934); Alexander Lesser, The 
Pawnee Ghost Dance Hand Game: A Study of Cultural Change (1933); Margaret Mead, 
The Changing Culture of an Indian Tribe (1932); Robert Redfield, Tepoztlan: A 
Mexican Village (1930); W. C. Bennett and R. M. Zingg, The Tarahumara: An Indian 
Tribe of Northern Mexico (1935). The writer has found a good deal of light on 

Published in The Southwestern Social Science Quarterly, 1937. 



In this field of what might be called dynamic anthropology, there are 
a good many practical problems on which an administrator may appeal 
for scientific assistance. It is the purpose of this paper to list very briefly 
a few of these problems of administration. 


Education on Indian reservations may be either an agent for dissolving 
Indian tradition and culture, for making a white man out of the Indian, 
or an instrument for preserving native values and ultimately, perhaps, 
enriching American life. The choice between these two divergent ob- 
jectives will be made not by the anthropologist but by the politician, 
that is to say, the determiner of policies. The anthropologist may be use- 
ful in the execution of either policy, for it is obvious that one cannot 
preserve cultural traits he does not understand, but it is equally true that 
efficient destruction demands maps of what is to be destroyed. 

The history of organized education in this country has made it seem 
natural, to those who control the purse strings of Indian education, that 
education should be directed primarily to children rather than to adults. 
The practice, however, of educating children along lines unfamiliar to 
their parents produces serious social maladjustments, as is amply evi- 
denced in the education of second generation Americans in our larger 
eastern cities. The child who is taught to respect skills and types of knowl- 
edge unfamiliar to his parents inevitably acquires a certain amount of 
disrespect for his parents, and, on the other hand, the parents, seeing the 
child spending time on unintelligible pursuits are likely to regard the 
younger generation as peculiarly ignorant and lacking in ability and dis- 

These tendencies combine to create a cleavage of generations. On many 
reservations the outward manifestation of this cleavage is bitter faction- 
alism, A second manifestation of this cleavage is the appearance of a 
"lost generation," a generation that has left a world that seems dark with 
superstition and barbarism and has not been admitted into the new 
world that has been heralded by school teachers and other prophets of 
civilization. These maladjustments do not produce "gangsters" on Indian 

current administrative issues in a comprehensive study of the Menominee Tribe by 
Felix and Marie Keesing [Menomini Indians of Wisconsin, 1939] which combines 
careful historical research with a keen understanding of contemporary social problems. 
The writer is also very much indebted to Dr. Scudder Mekeel, of the Indian Office, 
whose essay on "The Economy of a Modern Teton [Dakota] Community" [1936] is 
a model of realistic analysis. 


reservations as they do in our large cities, but they do produce shiftless, 
visionless, imitation white men that now, to most Americans, exemplify 
Indian character. 

The solution to this fundamental problem requires scientific analysis 
of the problem of acculturation. Some form of adult education is in- 
evitably called for if the continuity of generations, which is essential to 
social morality, is to be preserved. But adult education is a more difficult 
thing to arrange than elementary education, since it is harder to impose 
alien interests upon adults. All the more important is it, then, that we 
should base our plans for adult education upon a clear perception of the 
native interests and skills which must be the raw material of such educa- 
tion. In this task of exploration the anthropologist must play a primary 

There are problems more concrete upon which anthropological guid- 
ance is needed, such problems, for instance, as are involved in the de- 
velopment of education in arts and crafts. We need not only an index of 
native craft activities, but a critical appraisal of these activities from an 
economic and aesthetic point of view. The methods of basketry making 
among different Indian groups will differ widely with respect to the time 
consumed in production, the durability of the product, and its beauty. 
Unless work in arts and crafts is to be for the purpose of filling museums, 
the responsibility of choosing between efficient and inefficient techniques, 
between more beautiful and less beautiful products, will inevitably fall 
upon those charged with education in the applied arts. What is required, 
then, is an understanding not merely of Indian art products, but of the 
incentives and techniques of the native artists. 

Again, in the teaching of history, the anthropologist is called upon to 
make practical contributions of concrete value. Indian children and par- 
ents alike have the right to demand that the history of their people taught 
in their schools shall bear some resemblance to the facts. It is for the 
historical anthropologist to dig these facts out of the mass of records and 
old wives' tales in which Indian tribal history is imbedded. 


An Indian reservation is an administrative unit. It may or may not be 
a cultural or social unit. The fortunes of history have scattered the 
Chippewa Tribe through many states and brought together on a single 
reservation Shoshones and Arapahos, or Grosventres and Assiniboines. 
The differences between natural and administrative groupings are a key 
to many problems of Indian social organization and disorganization. The 


ever-present problem of factionalism within a reservation frequently runs 
back to band or clan divisions. 

Dr. Scudder Mekeel reports the case of an Indian corral built for the 
use of a certain "district" on a reservation. The district, laid out as a 
unit for administrative purposes, i.e., for the convenience of an Indian 
Service fanner with a car or perhaps a horse and buggy, had no special 
relation to Indian social groupings. There was consequently no feeling of 
collective responsibility among the Indians supposed to cooperate in the 
use of this corral. The result was that various Indian families felt no 
compunction about using the corral fence as a source of firewood. 

Here, in a minute case, is an example of the difficulties which ignorance 
of the natural Indian groupings has brought upon the shoulders of In- 
dian administrators. Nothing is more natural than that a forestry or 
grazing expert of the Indian Service should lay out a unit of operation 
with his eyes on the ground, investigating soil, water, contours, and veg- 
etation. He cannot give attention to the human factor in the problem 
of administrative areas unless he understands the nature of that factor. 
And the Indian Service is sadly in need of scientific information on the 
historical and ethnological elements that enter into the formation and 
functioning of social groups on the various reservations. 


In seeking to help the Indian to become self-supporting, Indian ad- 
ministrators have commonly taken one of two views. From the begin- 
ning the view has been current that the natural occupation of the Indian 
is that of farming. To a certain extent this view has been tempered by 
the belief that Indians should be assimilated into the white population 
through technical training in diversified occupations such as plumbing, 
hair dressing, and printing. 

There are difficulties in each of these theories of Indian economic de- 
velopment upon which the data of anthropology may throw significant 
light. Training for urban occupations is useful only if the person trained 
can make the social adjustments necessary for urban life. The situation 
of the Indian entering urban life is to a certain extent similar to that 
of the European immigrant, except for the increased isolation of the 
Indian in an urban society which cannot contain many others of his race. 
He meets with misunderstanding, race prejudice, and patronizing senti- 
mental interest. He must live entirely in a money economy. Familiar 
social sanctions of publicity, praise, and ridicule do not exist. Social 
jnores different from those he has known on the reservation or in school 



are enforced by sanctions that he may not recognize or understand. These 
difficulties, coupled with the more obvious difficulties which any country 
"hick" encounters among city "slickers/* make the program of industrial- 
izing and urbanizing individual Indians fairly hopeless. 

On the other hand, the program of assimilating the Indian to the pat- 
tern of life set by his white pioneer farmer neighbor has encountered 
difficulties equally serious though less easily understood. The typical 
white employee of the Indian Service has assumed that the life of the 
white pioneer farmer in the Indian country is a good life, and perhaps 
the good life, that industriousness is one of the highest virtues, and that 
the receipt of "charity" from the government is disgraceful. But these 
assumptions do not correspond with the traditional beliefs of most In- 
dians. In many parts of the country agricultural work has long been 
looked down upon as monotonous, degrading, and fit only for women. 
On the other hand, the receipt of goods from a generous friend or from 
a foe conquered in war was an extremely honorable method of securing 
material possessions. The Sioux veteran who brings home five pounds 
of bacon from the agency of the nation which he and his people once 
defeated in warfare may be engaged in an honorable occupation, accord- 
ing to the traditional Sioux standard of values. Even among whites the 
receipt of unearned income is considered honorable if it is the result of 
victory in military or economic warfare. The Indian Service extension 
worker who considers it perfectly obvious that the Indian who plants 
many acres of potatoes is a more honorable citizen than the Indian who 
draws rations simply fails to understand the background of values and 
incentives out of which economic activity emerges. 

In every culture there are gradations of occupation from the honorable 
to the dishonorable. These gradations cannot be safely ignored in the 
choice of suitable economic activities for a given community. Anthro- 
pologists can render a significant service by uncovering the standards and 
incentives which will produce efficient and satisfying work. We have 
learned, as a result of muddling experience, that certain Indians take 
to cattle-raising with tremendous enthusiasm. We know that many In- 
dians have been entirely unsuccessful as mill-workers, dairymen, or wheat 
farmers. We know in general that those Indians who have preserved their 
traditional occupations, e.g., irrigation farming among the Pueblos^ or 
fishing among certain northwest tribes, are industrious workers and enjoy 

their work. 

What Indian Service workers have generally failed to recognize is that 
in the long run people do not make a success of any job unless they en- 
joy it. Whether people enjoy or despise the work they are doing depends 



in very large measure upon childhood stories that made some kind of 
man's work (or woman's work) seem very important and exciting, upon 
ceremonial developments in the work they do that compensate for danger 
or relieve monotony, and upon a whole life adjustment to certain rhythms 
of activity. The hunter who has learned from his grandmother or grand- 
father of the glories of ancient hunters, who has looked upon success in 
the chase as the first mark of his manhood, who has accustomed his body 
to intermittent periods of sustained strenuous activity and his mind to 
the face of danger, may not be satisfied to dig potatoes or cultivate corn. 
There are other occupations of modern life, such as herding cattle or 
operating a tractor or a steam shovel, which may appeal to the same deep- 
rooted drives that once produced great hunters. On the other hand, the 
Indian irrigation farmer of the Southwest who has made a ritual and a 
religion of his dependence upon sun and rain and corn, who celebrates 
the harvest with communal rejoicing and symbolizes his pride of achieve- 
ment in the long ears of corn strung up to dry in front of his home, needs 
no Indian Service farmer to encourage his industry. 

The belief among certain Indian Service employees that Indians are 
naturally lazy is a token of Indian Service failure, indicating only that 
the bearers of modern civilization have not offered certain Indian groups 
a "moral equivalent" of the work that was traditionally honored and 
respected. The task of discovering or creating substitute activities which 
engross the same human drives and build upon the same popular ideals 
as the traditional work activities of a given Indian group is probably the 
most important task of applied anthropology. 


The extent of our ignorance of the basic facts of Indian land tenure is 
amazing. One might read in an hour all that anthropologists have had to 
say on this subject. Administrators and research workers alike have usu- 
ally dismissed the subject with the observation that private property in 
land did not exist. This is a misleading half-truth. It is probably true 
that, among most tribes, the individual Indian could not sell land to a 
white man, but this is hardly a negation of private property. Under any 
system of land tenure there are restraints on alienation, and in the great 
citadel of individual land tenures from which our common law is de- 
rived there have been times when most of the land in the country could 
not be sold to anyone. We do know that in many Indian tribes lands 
have been individually utilized for purposes of gardening, fishing, or 
trapping. Where such individual use is socially recognized there is in- 



evitably an unwritten code defining the limits and conditions of this 
interest in the land, and the methods of transferring it to others either 
inter vivos or at death. In some cases, as in the Rio Grande Pueblos, there 
may be well-defined forms of governmental procedure in the assignment 
of lands for cultivation and the revocation of assignments for non-use. 
Among other Indian groups, methods of appropriating tribal land to 
individual use may depend upon the strength or prestige of the indi- 
vidual claimant. But it is safe to say that in every Indian tribe some 
individual interest and some social obligations are attached to the land. 
Without knowledge of such individual rights and social responsibilities 
the Indian Service has never been able to deal satisfactorily with Indian 
land holding on unallotted reservations. Unless this lack of knowledge 
can be remedied, the drive towards imposition of white concepts of 
private property, in the form of the allotment system, is likely to be 
resumed. The administrator who seeks to control overgrazing on the 
Navajo Reservation, or to collect "operation and maintenance charges" 
for irrigation water on Pueblo lands, must be able to define the interests 
of private individuals in "communally owned lands." Unless this process 
of definition is based upon more anthropological information than is 
now at the disposal of any Indian Service administrator it is likely to 
end in confusion and failure. 


The problem of Indian inheritance has long baffled the Indian Service 
administrator. An Indian Service reservation administrator of outstand- 
ing ability once confessed that he had succeeded in wiping out all the 
pagan customs of his wards except their customs of inheritance. It was 
still possible for the decedent's brother to take all his cattle, leaving the 
widow and children in abject poverty. Possibly if this superintendent had 
understood the inheritance laws of the tribe under his jurisdiction he 
would have seen as much justice in them as in the inheritance laws of the 
various states. But it is also possible that the situation which caused him 
concern was in part the result of white laws that in years past the 
brother would have taken not only the cattle but the widow and children 
as we n an d that the present situation is an unstable resultant of two 
divergent codes. 

In imposing state inheritance laws upon certain Indian reservations 
we inevitably read into Indian social life the concepts upon which white 
inheritance is based, i.e. marriage, divorce, adoption, degrees of relation, 
the ownership of property within a family, and the concept of decedent's 



debts. To what extent these concepts represent anything actual in native 
Indian social organization we do not know. 


Indian health conditions are notoriously bad. Foremost among the gifts 
which the white men have brought to native America is the Pandora's 
box of diseases previously unknown on this continent. The problem is 
essentially a white problem to be solved with white medicine. Yet even 
in this field there are native resources and native obstacles which make 
the problem of health maintenance on Indian reservations different from 
the problem that exists in a white locality of equal poverty. 

For one thing the habit, widespread among the Plains Indians, of 
family visits to friends and relatives for sustained periods, coupled with 
conditions of crowding in Indian homes, lays a special basis for the spread 
of contagious diseases. This renders almost futile individual treatment 
of contagious diseases which sends the cured individual back to the source 
of contagion. Preventive hygiene demands not only a knowledge of the 
social customs that endanger health but also an appreciation of the 
human satisfactions derived from these customs. In the last analysis, these 
customs will be modified not by prohibitory commandments of a sanitary 
code but only by social adjustments which bring to the Indians concerned 
the human values they have hitherto found in the customs that have be- 
come dangerous to health. Father William Duncan, for example, made 
it possible for his Indian community to be both hospitable and healthy 
by encouraging them to build community guest-houses for visiting In- 
dians. 2 

Indian Service efforts in preventative hygiene have made insufficient 
use of native patterns and ideals of physical development. In our efforts 
at civilization we have substituted rations of beans, coffee, sugar, lard, 
and flour for native Indian diets. We have instructed the Indian to guard 
his body from the sunlight, we have deprived many Indian groups of 
adequate water supplies, we have discredited the native medicine men 
(who in many parts of the country had achieved remarkable skill and 
a knowledge of native medicinal herbs that white physicians have not yet 
improved upon), and we have instigated radical changes in forms of 
shelter. An analysis of these civilizing drives from the standpoint of public 
health would be of great value. 
2. H. S. Wellcome, Story of Mettakatla (1887), p. $3. 

2 2O 



To many visitors in the Indian country the outstanding impression of In- 
dian life, outside of the Southwest, is that of spiritual squalor. Through- 
out the Plains country and in many other parts of the nation, white 
civilization has wiped out a culture remarkably rich with everyday 
beauty, in the applied arts, in games, in dress, in dances and music. There 
has been substituted a desolate ideal of the white homesteader, a man 
who has lost contact with society #nd has no time anyway for friend- 
ships, art, or play. This change of values has naturally demoralized the 
Indian. The white homesteader was generally buoyed up to endure a 
recreationless life by drives which the Indian has not inherited, chiefly 
the powerful drive of individual financial success to be achieved through 
the exploitation of natural resources. Some day anthropologists may 
chart in detail the ravages which have followed white attack upon Indian 
recreation. Meanwhile there is the more immediately pressing task of 
resurrecting forms of Indian art and recreation which can serve in mod- 
ern life the same functions that they served decades ago, or of discover- 
ing or inventing their modern equivalents, 3 in terms of a scientific theory 
of cultural valences. 

3. At Metlakatla, Mr. Paul Gordon, of the Division of Territories, informs me, 
an effective substitute for gambling games was found in the setting up of a magni- 
ficent brass band. Cf. J. W. Arctander, The Apostle of Alaska (1909), pp. 225, 337. 


How Long Will Indian Constitutions Last? 

BETWEEN October 28, 1935, and January 15, 1939, ninety-seven Indian 
tribes framed constitutions for self-government, which were approved 
under the Act of June 18, 1934. 

How long are these Indian constitutions likely to last? 

Any answer to this question that is more than mere guesswork must 
square with the recorded history of Indian constitutions. Tribal constitu- 
tions, after all, are not an innovation of the New Deal. The history 
of Indian constitutions goes back at least to the Gayaneshagowa (Great 
Binding Law) of the Iroquois Confederacy, which probably dates from 
the isth century. We have the wampum records and transcripts of the 
traditional recitations expounding the provisions of this constitution 
the rule of unanimity, the federal structure of government, the provisions 
for initiative, referendum, and recall, the prohibition against putting 
chestnut wood in the council fire, the male suffrage amendment, and 
the warning to political office-holders that they must develop skin "seven 
spans thick" so that they may be tolerant of criticism and immune from 
anger. (The Constitution of the Five Nations, New York State Museum 
Bulletin, No. 184.) 

So too, we have the written constitutions of the Creek, Cherokee, 
Choctaw, Chickasaw, and Osage nations, printed usually on tribal print- 
ing presses, constitutions which were in force during the decades from 
1830 to 1900. 

These constitutions are merely historical records today. Other Indian 
constitutions, however, retain their vitality. A good many tribes have 
had rudimentary written constitutions, while still other tribes are gov- 
erned by elaborate constitutions which have never been recorded. The 
difference between a written and an unwritten constitution should not 
be exaggerated. The rules concerning council procedure, selection of 
officers, and official responsibilities, which have been followed by the 
Creek towns, or by the Rio Grande Pueblos, without substantial altera- 
tion across four centuries, certainly deserve to be called constitutions. 

Published in Indians at Work (US. Department of the Interior), 1939, 



They do not lose their potency when they are reduced to writing. When 
the constitution of Laguna Pueblo was reduced to writing in 1908, the 
structure of the Pueblo and its way of life were not altered by that event. 

In all recorded history of Indian constitutions, two basic facts stand out. 

It is a fact of primary significance that no Indian constitution has 
ever been destroyed except with the consent of the governed. Congress 
has never legislated a tribal government out of existence except by treaty, 
agreement or plebiscite. Even the wholesale destruction of the govern- 
ments of the Five Civilized Tribes in the old Indian Territory was ac- 
complished only when the members of these tribes, by majority vote, 
had accepted the wishes of Congress. These governments ceased to exist 
as governments primarily because they had admitted to citizenship, and 
to rights of occupancy in tribal lands, so many white men that the 
original Indian communities could no longer maintain a national exist- 
ence apart from white settlers. The acts of Congress and the plebiscite 
votes of the tribes, which were dominated by the "squaw-men" and 
mixed-bloods, reflected an accomplished fact. The Constitution of the 
Iroquois Confederacy likewise was broken only by the Indians them- 
selves. The unity which was the Iroquois Constitution was broken when 
the Six Nations could not agree on the question of whether to support 
the American revolutionaries or the British. 

The second basic fact that stands out in a survey of the life span of 
Indian constitutions is that the Indians themselves cease to want a con- 
stitution when their constituted government no longer satisfies important 
wants. When this happens, a tribal government, like any other govern- 
ment, either dissolves in chaos or yields place to some other governing 
agency that commands greater power or promises to satisfy in great 
measure the significant wants of the governed. 

If we are to be realistic in seeking to answer the question, "How long 
will the new Indian Constitutions last?" we must focus attention on the 
human wants that tribal governments under these constitutions are able 
to satisfy rather than on guesses as to what future Congresses and future 
administrations may think of Indian self-government. For one thing, 
it is highly improbable that Congress will depart so far from the tradi- 
tion of American democracy and local self-government, and from its own 
practice across 150 years, as to legislate a tribe out of existence unless 
a majority of the Indians themselves want the tribe dissolved. In the 
second place, even if Congress should enact such legislation, it probably 
could not be enforced if the Indians objected to it. It is extremely likely 
that organized Indian tribes will continue to exist as long as American 
democracy exists and as long as the American people are unwilling to 



use the army to carry out Indian policies provided that the Indians 
themselves feel that tribal governments satisfy important human wants. 
What are the wants that a tribal government can help to satisfy? 

The most fundamental of the goods which a tribe may bring to its 
members is economic security. Few things bind men so closely as a com- 
mon interest in the means of their livelihood. No tribe will dissolve so 
long as there are lands or resources that belong to the tribe or economic 
enterprises in which all members of the tribe may participate. The young 
man who in the plastic years of adolescence goes to his tribal government 
to obtain employment in a tribal lumber mill, cooperative store, hotel, 
mine, farm, or factory, or who applies to a committee of his tribal coun- 
cil for a chance to build up his herds, or to build a home and garden 
upon tribal lands assigned to his occupancy, cannot ignore this tribal 

Government is an affair of human loyalties. These loyalties Indian 
tribes cannot command if, in the important economic decisions of their 
lives, the members of the tribe must look elsewhere for opportunity and 
guidance. The preservation of tribally owned lands, where such owner- 
ship exists, and the fostering of Indian land-use under tribal guidance, 
are essential if the younger generation is to continue to look to the tribe 
for aid in life's economic struggles. 

It follows that governmental credit policies in making loans to Indian 
tribes are of critical importance. If, in such loans, special attention is 
given to encouraging tribal enterprises that spring from tribal interest 
and initiative, a real basis of social solidarity is provided. On the other 
hand, if credit operations are entirely confined to individual enterprises, 
or to agency enterprises that are "tribal" in name only, no such common 
interest is created. The struggle among individual Indians for a lion's 
share of tribal loan funds may prove, on the contrary, a disintegrating 
and faction-producing drive. 

Second in importance only to the tribal credit program is the tribal 
land acquisition program. A landless tribe can evoke no more respect, 
among farmers, than a landless individual. But more than paper owner- 
ship of tribal land is here in question. The issue is whether the tribe 
that "owns" land will be allowed to exercise the powers of a landowner, 
to receive rentals and fees, to regulate land-use and to withdraw land- 
use privileges from those who flout the tribal regulations; or whether 
the Federal Government will administer "tribal" lands for the benefit 



of the Indians as it administers National Monuments, for instance, for 
the benefit of posterity, with the Indians having perhaps as much actual 
voice in the former case as posterity has in the latter. 

The roots of any tribal constitution are likely to be as deep as the 
tribe's actual control over economic resources. 


Less tangible than the possession of common property, but perhaps 
equally important in the continuity of a social group, is the existence 
of common enjoyments. In community life, as in marriage, community 
of interest in the useful and enjoyable things of life makes for stability 
and loyalty. 

Any governmental organization must do a good many unpleasant jobs. 
Arresting law-breakers and collecting taxes are not activities that inspire 
gratitude and loyalty. Thus government comes to be looked upon as a 
necessary evil, at best, unless it actively sponsors some of life's everyday 
enjoyments. An Indian tribe that enriches the recreational life of its 
members through the development of community recreational facilities 
is building for itself a solid foundation in human loyalty. 

There is no doubt that the remarkable tenacity of traditional govern- 
ment in the Pueblos of New Mexico derives in large part from the role 
which that government plays in the popular dances, communal hunts, 
and similar social activities. To relieve the barrenness of life on some 
of the northern reservations is a task hardly less important than tie 
reestablishment of the economic basis of existence. The establishment 
and management of community houses, which may be centers of com- 
munity sings, community dances, community plays, fairs, and festivals, 
movies, athletics, and club activities might be the decisive factor in de- 
termining the permanency of a tribal constitution. The building of a 
community basketball court and swimming pool by the tribal govern- 
ment may do more to win loyalty from the youth of the tribe, and thus 
to insure the permanence of tribal organization, than many activities 
of government that political theorists may consider more essential. 

In this field, much will depend upon the attitude of Indian Service 
officials, and particularly upon the attitude of teachers, social workers, 
and extension agents. It will be hard for them to surrender the large 
measure of control that they now exercise over the recreational and social 
life of the reservations, but unless they are willing to yield control in 
this field to the tribal government, that government may find itself 
barred from the hearts of its people. 




Outside of Indian reservations, local government finds its chief justi- 
fication in the performance of municipal services, and particularly the 
maintenance of law and order, the management of public education, 
the distribution of water, gas, and electricity, the maintenance of health 
and sanitation, the relief of the needy, and activities designed to afford 
citizens protection against fire and other natural calamities. On most 
Indian reservations all of these functions, if performed at all, are per- 
formed not by the tribal councils but by employees of the Indian Service. 
Thus the usual reason for the maintenance of local government is lacking. 

The cure for this situation is, obviously, the progressive transfer of 
municipal functions to the organized tribe. Already some progress has 
been made in this direction in the field of law and order. Codes of mu- 
nicipal ordinances have been adopted by several organized tribes; judges 
are removable, in some cases, by the Indians to whom they are responsi- 
ble; and the former absolute powers of the Superintendent in this field 
have been substantially abolished. In the other fields of municipal ac- 
tivity no such change has yet taken place. 

Where Indian schools are maintained, the Indians generally have 
nothing to say about school curricula, the appointment or qualifications 
of teachers, or even the programs to be followed in the commencement 
exercises. Many reasons will naturally occur to the Indian Service em- 
ployee why the tribal government should have nothing to say about In- 
dian education. It will be said that the Federal Government pays for 
Indian education and should therefore exercise complete control over it, 
an ironic echo of the familiar argument that real-estate owners pay for 
public education and should therefore control it. It will be said that In- 
dians are not competent to handle educational problems. It will be said 
that giving power to tribal councils will contaminate education with 

None of these objections has any particular rational force. In several 
cases teachers are now being paid not out of Federal funds but out of 
tribal funds. So far as the law is concerned, an act of Congress that has 
been on the statute books since June 30, 1834, specifically provides that 
the direction of teachers, and other employees, even though they be paid 
out of Federal funds, may be given to the proper tribal authorities wher- 
ever the Secretary of the Interior (originally, the Secretary of War) con- 
siders the tribe competent to exercise such direction. Indians are con- 
sidered competent enough to serve on boards of education where public 


schools have been substituted for Indian Service schools. And there is 
no good reason why tribal "politics" deserves to be suppressed, any more 
than national "politics." If these common arguments are without rational 
force, they are nevertheless significant because they symbolize the un- 
willingness of those who have power, positions, and salaries, to jeopardize 
the status quo. 

This is true not only in the field of education. It is true in the field 
of health, community planning, relief, and all other municipal services. 
It is true of government outside of the Indian Service, and perhaps it is 
true of all human enterprise. The shift of control from a Federal bureau 
to the local community is likely to come not through gifts of delegated 
authority from the Federal bureau, but rather as a result of insistent 
demands from the local community that it be entrusted with increasing 
control over its own municipal affairs. 


A fourth source of vitality in any tribal constitution is the community 
of consciousness which it reflects. Where many people think and feel as 
one, there is some ground to expect a stable political organization. Where, 
on the other hand, such unity is threatened either by factionalism within 
the tribe or by constant assimilation into a surrounding population, con- 
tinuity of tribal organization cannot be expected. 

This is a factor which shows every possible variation. At one extreme 
of social solidarity are those pueblos that voted unanimously to accept the 
Wheeler-Howard Act and for centuries have regularly cast unanimous 
votes for their officers. At the other extreme are those areas of the North- 
west where today, as in the days before Columbus, every family is a fac- 
tion and the "tribe" is only a statistical concept. In between these extremes 
are situations that respond readily to influences making for greater unity 
of feeling or to influences breaking down the unity that exists. Of the 
factors that strengthen unity of feeling, perhaps the most important is 
pride in a common origin, history, and heritage. This is a factor that may 
be considerably strengthened by bringing into the school curriculum his- 
torical material dealing with the past achievements of the Indian groups, 
and by strengthening interest in native games, native foods, native arts 
and crafts, native dances and ceremonials. The young Indian who has 
moved to a nearby town is likely to return to his people on the occasion 
of an Indian festival, instead of moving farther away. And it is this 
young Indian who is the "marginal citizen" whose movement determines 
whether the tribal organization will endure. 




A fifth source of potential strength for any tribal organization lies in 
the role which it may assume as protector of the rights of its members. 

Where there is a popular consciousness of grievances and the history 
of most Indian tribes is filled with accounts of broken treaties, massacres, 
land steals, and practical enslavement of independent tribes under dic- 
tatorial rule by Indian agents, leaving a bitter, rankling resentment in 
the hearts of the Indians the governing body of the community must 
seek their redress, whether against state officials, Indian Service employees, 
white traders, or any other group. 

In this field of activity, tribal governments can achieve significant re- 
sults. A council, for instance, that employs an attorney to enjoin the en- 
forcement of an unconstitutional statute depriving Indians of the right 
to vote is likely to secure a first lien on the respect of its constituency and 
materially increase the life expectancy of the tribal constitution. A tribal 
council that makes a determined fight to secure enforcement of laws 
some of them more than a hundred years old granting Indians prefer- 
ence in the Indian Service employment will win Indian support even if it 
loses its immediate fight. So with many other common grievances on 
which collective tribal action is possible. A rubber stamp council that 
simply takes what the Indian Office gives it is not likely to establish per- 
manent foundations for tribal autonomy. Rubber is a peculiarly perish- 
able material, and it gives oft a bad smell when it decays. 

There is, then, no single answer that can be given to the question, 
"How long will Indian constitutions last?" We may be sure that different 
constitutions will perish at different ages. Some, no doubt, have been still- 
born. Such constitutions may exist in the eyes of the law but not in the 
hearts of the Indians, and at the first signal of official displeasure, they 
will disappear. Other constitutions represent realities as stable as the 
reality that is the United States of America or the City of St. Louis. 

One who seeks a mathematical formula can perhaps measure the life 
expectancy of various tribal constitutions by assigning numbers to the 
factors we have discussed the extent to which the organized tribe min- 
isters to the common economic needs of the people, the degree in which 
the organized tribe satisfies recreational and cultural wants, the extent 
and efficiency of municipal services which the tribe renders, the general 
social solidarity of the community, and the vigor with which the tribal 
government expresses the dissatisfactions of the people and organizes the 
wishes of the people along rational lines, 



More generally one can say that a constitution is the formal structure 
of a reality that exists in human hearts. An Indian constitution will 
exist as long as there remains in human hearts a community of inter- 
dependence, of common interests, aspirations, hopes, and fears, in realms 
of art and politics, work and play. 


The Spanish Origin of Indian Rights 
in the Law of the United States 


To trace the origins of our Federal Indian law is a difficult task. The law 
of the United States with respect to Indian tribes is a curious historical 
patchwork in which may be found the product of many looms and many 
weavers. One may divide this strange patchwork into its component 
patches and find nearly four hundred federal treaties with Indian tribes, 
about four thousand federal statutes, and an even larger number of 
judicial and administrative decisions which, by and large, attempt to 
interpret and to apply these treaties and statutes. The fact that there 
are Spanish threads in this patchwork is of no greater significance than 
the fact that some of the finest of our old Navajo Indian rugs contain red 
threads (bayeta) that were secured by unraveling the red woolen under- 
wear of Spanish soldiers. What is really important, after all, about the 
Spaniards and the Navajo rugs is that the Spaniards (largely through the 
intermediary of the Pueblo Indians) introduced into the country of the 
Navajos the sheep and the wool of which Navajo rugs are made, and 
introduced into the life of the Navajos the ways of the sheepherder and 
weaver, which supplanted ways of the raider and hunter. These were 
the real Spanish contributions to the Navajo rug. 

So it is with our law. We should have a poor idea of the Spanish in- 
fluence upon our Federal Indian law if we divided that tapestry and 
noted which patches and threads were of Spanish origin. For then we 
should lose the pattern and the creative principles of this law, and it is 
this pattern and these creative principles that are the distinctive con- 
tribution of Spanish juristic thought to our Federal Indian law. This 
is not merely a fact of antiquarian interest. It is a fact of some importance 
to the world of today and tomorrow. If our law of Indian affairs were 
the result of a purely local adaptation of Anglo-American common law, 

Published in Georgetown Law Journal, 1942. 



or a pure product of independent national legislation, we might not 
expect it to have much relevance to the problems of inter-racial and inter- 
cultural relations in other parts of the world. But if, on the other hand, 
the spirit of this law and its creative principles came to us across wide 
waters, and across wider gulfs of polity, religion, and culture, there must 
be in this spirit and these principles something that is not merely local 
and particular, something that is universal and enduring, something that 
can be carried to other lands across wide waters and wider gulfs of polity, 
religion and culture. Such is the significance of what might otherwise be 
an interesting but unimportant problem for legal antiquarians. 

Today, more than ever before, we need to study the legal relations 
that have served to bind together in common cause and common effort 
peoples of different races, different creeds, different social structures, and 
different ways of life. In such a study we cannot afford to overlook the 
relations of the United States to the Indian tribes within our territory. 
The comparatively small number of Indians involved does not diminish 
the importance of such studies. The fact is that there is probably no 
dependent people in any part of the world which rallied to the support 
of democracy with more devotion than the tribal Indians of the United 
States. In the rate of volunteering for the armed services (particularly 
in World Wars I and II) they far surpassed the white or black popula- 
tions of the United States. In the proportion of their funds which they 
voluntarily placed at the disposal of the Federal Government, through 
subscription to war bonds or otherwise, they have again far surpassed the 
rest of the country. They gave not only of blood and sweat and tears but 
of brains as well. Descendants of great Indian strategists earned impor- 
tant positions in our armed forces. It was to a member of the Osage Tribe, 
Major General Tinker, that the all important job or rebuilding the air 
forces in Hawaii was entrusted after Pearl Harbor, and he more than any 
one else deserves credit for our air victory in the Battle of Midway, 
where he himself lost his life. Had the United Nations found as staunch 
defenders in the peoples of Egypt, Indo-China, the East Indies, Malaya 
or Burma, what pen could rewrite the history of the early years of World 
War II? 

It may be doubted whether our tribal Indians are to be distinguished 
in physical strength or courage or health or pugnacity or intelligence 
from native populations in some other parts of the world that have not 
rallied to the support of their governments in time of stress. At least the 
hypothesis is worth examining that what has distinguished our tribal 
Indians from these other native populations lies on a legal plane, that it 
is, in essence, a relation to government capable of evoking loyalty, and 



that in other parts of the world, where a similar relationship between 
peoples exists, as in the Philippines, a similar loyalty is likely to appear. 
What is the nature of this legal pattern that has so dramatically shown 
its capacity to evoke loyalty? 


Let us be clear, in the first place, about the object of our search. We are 
to trace the history of certain social ideals, ideals which have seldom 
corresponded exactly to the realities of living but which have been close 
enough to reality to attain the force of law. We are to look for origins of 
pattern, spirit, principle, that bind together thousands of statutes and 
decisions. To do that we must first reduce the maze of our Indian law to 
a manageable scheme and take account of its basic principles. That is no 
easy task, but the most comprehensive effort thus far made in this direc- 
tion has traced the manifold detail of existing Federal Indian law to 
four basic principles: 

(i) The principle of the legal equality of races; (2) the principle o 
tribal self-government; (3) the principle of Federal sovereignty in In- 
dian affairs; and (4) the principle of governmental protection of Indians. 1 

A brief examination into the legal content of these principles must 
suffice for our present purposes. 

/. Legal Equality 

The legal status of tribal Indians, although different from, is not inferior 
to, that of their white countrymen. Today all Indians born in the United 
States are citizens of the United States. 2 As citizens they are entitled to 
the rights of suffrage guaranteed by the Fifteenth Amendment to the 
Federal Constitution, 3 and they are likewise entitled to hold public office. 

1. See Introduction, by Solicitor Nathan R. Margold, to Cohen, Handbook of 
Federal Indian Law (1941) pp. vii to xv. 

2. This has been true since the adoption of the act of June 2, 1924, 43 Stat. 253, 8 
U.S.C. 3 (1934)- Prior to that time most Indians had become citizens under special 
laws and treaties. See, e.g., Treaty of September 27, 1830, with Choctaws, art. 14, 7 
Stat. 333, 335. 

3. This Amendment declares: "The right of citizens of the United States to vote 
shall not be denied or abridged by the United States or by any State on account of 
race, color, or previous condition of servitude." The Supreme Court, interpreting this 
provision in United States v. Reese, 92 U.S. 214 (1875) at p. 218, asserted: "If citizens 
of one race having certain qualifications are permitted by law to vote, those of another 
having the same qualifications must be." Accord, Neal v. Delaware, 103 U.S. 370 (1880). 


The process of conferring citizenship upon Indians has been a slow 
process. It began with a ringing declaration in 1776 "that all men are 
created equal, that they are endowed by their Creator with certain un- 
alienable Rights, that among these are Life, Liberty, and the pursuit of 
Happiness/' The process reached its conclusion only in 1924, when the 
last non-citizen Indians gained citizenship. But throughout the years 
when many or most Indians were non-citizens, their legal status as human 
beings was not subordinated to that of their white countrymen. Their 
lives and property were held to be entitled to legal protection against 
violence. When the United States Army attempted to exercise military 
control over a group of peaceful Indians who refused to remain on the 
reservation assigned to them, the Indians were freed from army control 
by the issuance of a writ of habeas corpus. 4 Indians were recognized as 
having legal capacity to sue, 5 to make contracts, 6 to hold public office, 7 
and to enjoy all the civil liberties guaranteed to their white neighbors, 
citizen or alien. 8 Their legal status was, and is, peculiar only because they 
are members of special political bodies, tribes, which largely take the 
place that states and municipalities occupy towards other citizens of the 
United States. The political conception of the tribe is thus the origin of 
whatever is distinctive about the legal position of the Indian in the law 
of the United States. 

Statutes in three states, Washington, Arizona, and New Mexico, purport to restrict 
the constitutional right of Indians to vote. Such statutes have been declared uncon- 
stitutional by two Attorney Generals of the State of Washington (Op. Att'y. Gen. W. 
V. Tanner, June 15, 1916; Op. Att'y. Gen. G. W. Hamilton, April i, 1936); and by the 
Solicitor of the Department of the Interior (Op. of Solicitor, M. 29596, Jan. 26, 1938); 
but have been upheld by the courts of Arizona, Porter v. Ha//, 34 Ariz. 308, 271 Pac. 
411 (1928). [Ed. note: In 1948, as General Counsel of the Association on American 
Indian Affairs, Felix Cohen presented the brief for the Arizona Indians which won 
them the right to vote (Harrison v. Laveen, 67 Ariz. 337, 196 Pac. 2d 456, 1948). In the 
same year he argued the voting case for the New Mexico Indians before a three- 
judge court and won a unanimous decision on the constitutional right of Indians 
to the franchise (Trujillo v. Garley, D.C., N.M. 1948, unreported). See below, pp. 

4. United States, ex rel. Standing Bear v. Crook, 25 Fed. Gas. 695, No. 14,891 (C.C. 
Nebr. 1879). 

5. Felix -a. Patrick, 145 U.S. 317, 332 (1892); Deere v. St. Lawrence River Power Co., 
32 F. (2d) 550 (C.C.A. 2d, 1929). 

6. Jones v. Meehan, 175 U.S. i (1899); and see United States v. Paine Lumber Co., 
206 U.S. 467 (1907). 

7. 13 Op. Att'y. Gen. 27 (1869), holding an Iroquois Indian, General Parker, eligible 
for the post of Commissioner of Indian Affairs. 

8. Cohen, "Indian Rights and the Federal Courts" (1940) 24 Minn. L. Rev. 145; 
Cohen, op. cit. supra, note i, pp. 177-81. 



2. Tribal Self-Government 

The principle that an Indian tribe is a political body with powers of 
self-government was first clearly enunciated in the jurisprudence of the 
United States by Chief Justice Marshall in the case of Worcester v. 
Georgia* Indian tribes or nations, he declared, ". . . had always been 
considered as distinct, independent, political communities, retaining 
their original natural rights, . . ." To this situation was applied the 
accepted rule of international law: ". . . the settled doctrine of the law 
of nations is, that a weaker power does not surrender its independence- 
its right to self-government by associating with a stronger, and taking 
its protection." 

From these premises Chief Justice Marshall concluded that the State 
of Georgia had no right to interfere with the laws and territory of the 
Cherokee Tribe. Following this decision, the federal courts have held 
that Indian tribes have all the powers of self-government of any sover- 
eignty except in so far as those powers have been modified or repealed by 
act of Congress or by treaty. 10 Hence over large fields of criminal and 
civil law, and particularly over questions of tribal membership, inher- 
itance, tribal taxation, tribal property, domestic relations, and the form 
of tribal government, the laws, customs, and decisions of the proper tribal 
governing authorities have, to this day, the force of law. 

5. Federal Sovereignty 

At the present time it may be laid down as a rough general rule that 
Indians on an Indian reservation are not subject to the local law of the 
state in which they reside. 11 This exemption is of particular importance 
in the fields of criminal law and taxation. The general rule has been 
modified only in a few particulars by congressional action conferring 
upon states specific powers over certain subjects. 12 

9. 6 Pet. 515, 559-56o (U.S. 1832). 

10. Ex parte Crow Dog, 109 U.S. 556 (1883); Standley v. Roberts, 59 Fed. 836 (C.C.A. 
8th, 1894); Talton v. Mayes, 163 U.S. 376 (1896); Waldron v. United States, 143 Fed. 
413 (C.C.S.D. 1905); Jones v. Meehan, 175 U.S. i (1899); Buster v, Wright, 135 Fed. 
947 (C.C.A. 8th, 1905), app. dism. 203 U.S. 599 (1906); Cherokee Nation v. Journeycake, 
155 U.S. 196 (1894); United States v. Quiver, 241 U.S. 602 (1916); Turner v. United States 
and Creek Nation, 51 Ct. Cl. 125, aff'd, 248 U.S. 354 (1919); Pueblo of Santa Rosa t/. 
Fall, 273 U.S. 315 (1927). 

11. Worcester v. Georgia, 6 Pet. 515 (U.S. 1832); United States v. Kagama, 118 U.S. 
375 (1886); United States v. Sutton, 215 U.S. 291 (1909). 

12. The most important of such laws is the General Allotment Act of 1887, 24 Stat. 
388, 25 U.S.C. 348 (1934), which subjects Indian estates to state laws of inheritance. 


The fact that Indian tribes are largely exempt from the operations of 
the local laws of the states and their political subdivisions derives from 
the fact that the Constitution of the United States vests in the national 
government rather than in the states the three powers upon which our 
law of Indian affairs is primarily based the war-making power, the 
treaty-making power, and the power to regulate commerce with Indian 
tribes. In practice, this centralization of federal sovereignty over Indian 
affairs has proved a powerful weapon against oppression. Again and again 
the federal courts have intervened to restrain the attempts of local au- 
thorities to infringe upon Indian rights. 13 As the Supreme Court of the 
United States once said: "These Indian tribes are the wards of the 
nation. . . . They owe no allegiance to the States, and receive from them 
no protection. Because of the local ill feeling, the people of the States 
where they are found are often their deadliest enemies/' 14 

The functional significance of this principle of federal sovereignty 
over Indian affairs lies in the fact that Indians, in conflicts of interest 
with non-Indian neighbors, have been able to call upon the Federal 
Government to aid in the protection of Indian rights. 15 

4. Federal Protection of Indians 

Intercourse between people of widely disparate cultural levels inevitably 
affords opportunities for exploitation, oppression, and debauchery. The 
first white traders in America offered the natives new weapons, new 
drinks, and new tools, all of which were capable of destroying native 
life, health, and culture. In exchange for these deadly but apparently 
irresistible gifts, the whites were able to demand surrender of the land 
from which the Indian drew his sustenance. Warped, poisoned, and 
armed with deadly weapons, the displaced tribe would be pushed on to 
the lands of another tribe to spread the seeds of destruction. This was 
the basic pattern; local bounties for native scalps and the sale to Indians 
of blankets infected with small-pox were obscene and unnecessary em- 
bellishments. 16 

13. See Cohen, supra note 8, 24 Minn. L. Rev. 145. 

14. United States v. Kagama, 118 U.S. 375, 383 (1886). 

15. Thus, for example, the act of March 3, 1893, 27 Stat. 612, 631, 25 U.S.C. 175 
(1934), provides: "In all States and Territories where there are reservations or allotted 
Indians the United States district attorney shall represent them in all suits at law and 
in equity." 

16. In 1704, for example, Connecticut offered bounties from the public treasury of 
five pounds for every Indian scalp. Conn. Records, IV, 463. 

Lord Jeffrey Amherst, English Commander-in-chief, wrote to Colonel Bouquet, 
in 1763 or 1764: "You will do well to try to inoculate the Indians [with small-pox] 


The problem facing our central government from the start was how 
to stop, or at least minimize, this process of exploitation and extermina- 
tion. The answer chosen was the imposition of a rigid control over all 
intercourse between its own subjects and the native population. This 
control, designed to protect the Indian without absolutely forbidding 
intercourse between the two races, has been the guiding motif of federal 
legislation on Indian affairs down to the present date. 

In 1790 the first Federal Congress adopted the policy of regulating 
trade with the Indians through a system of licensing traders. 17 Except 
for a brief period, from 1796 to 1822, when a system of government trad- 
ing houses was maintained, 18 the principle of control of Indian trade 
through licenses has been in force. Under this system federal supervision 
of the character and quality of goods sold and prices charged has been 
possible. Sales of liquor, and of firearms and ammunition not needed for 
useful purposes, have been banned. 

The most important subject of trade between Indians and whites was 
inevitably the land which the Indians possessed and which the white 
immigrants needed. It was about trade in land that the most stringent 
restrictions have been placed by the Federal Government. For many 
decades transfers of Indian land could not be made by private transaction 
but required for their validity a formal treaty between the Indian tribe 
and the United States. 19 Down to the present day tribal land may not 
be sold except by a special act of Congress. Where, however, Indian lands 
have been individualized, general legislation permits the sale of the indi- 
vidual allotments under conditions designed to safeguard the interest of 
the Indian vendor. 20 Generally, such safeguards include either the re- 
quirement that the Indian vendor must hold the land for a fixed period 
of time, usually 25 years, before receiving a "fee patent" entitling him to 
sell the land, or a requirement that the particular transaction should be 
approved by the Secretary of the Interior. 

by means of blankets, as well as to try every other method that can serve to extirpate 
this execrable race. I should be very glad your scheme for hunting them down by 
dogs could take effect." Channing, History of the United States, Vol. 3 (1912), "The 
American Revolution 1761-1789," pp. 15, 27, n. 2. 

17. Act of July 22, 1790 (i Stat. 137). 

18. Act of April 18, 1796 (i Stat. 452); act of April 21, 1806 (2 Stat. 402); act of 
March 2, 1811 (2 Stat. 652); act of March 3, 1815 (3 Stat. 239); act of March 3, 1817 (3 
Stat. 363); act of April 16, 1818 (3 Stat. 428); act of March 3, 1819 (3 Stat. 514); act of 
March 4, 1820 (3 Stat. 544); act of March 3, 1821 (3, Stat. 641). The system of govern- 
ment trading houses was terminated by the act of May 6, 1822 (3 Stat, 682). 

19. Act of July 22, 1790 (i Stat 137). The first federal statute containing this 
restriction on land transfers was reenacted from time to time and is now embodied in 
25 ILS.C. g 177 (1934). 

20. See Cohen, op. cit. supra, note i, c. 11. 



The leasing of Indian lands for short periods has been allowed in 
recent years, but only under conditions designed to protect the Indian 
lessors. In most Indian leases, whether tribal or individual, the approval 
of the Secretary of the Interior or of some subordinate officer is required. 

By maintaining its control over the transactions by which Indians dis- 
pose of land, the Federal Government has been able to establish a large 
degree of control over the income received by the Indians from such dis- 
position. Sale or leasing of land has been a major source of income for 
most Indian tribes, and control of this income has permitted the Federal 
Government to direct a considerable portion of the Indian income into 
educational, health, and other public services for Indians. A substantial 
part of our Federal Indian law today is concerned with the Federal dis- 
position of Indian moneys. 

The principle of federal protection of Indian rights has proved to be of 
special importance in the maintenance of Indian land rights. By treaty 
and by statute the United States undertook to protect the Indian tribes 
in their possession of vast areas of land. It is true that this Indian posses- 
sion was not considered a perfect title, and in the cases it is commonly 
said that legal title to such lands is in the United States, with a right of 
use and occupancy in the Indians. But these are subtleties of feudal legal 
theory which meant nothing to the Indians. Our courts have repeatedly 
said that the Indian right of occupancy and use is as sacred as the fee 
title, 21 and it is certainly more substantial than the naked legal title 
which legal theory locates in the Federal Government. Indeed, it may be 
said that lands held by "Indian title" are worth more to the Indian 
holders than are lands held in fee simple; for lands of the former sort 
are exempt from state taxation and from execution under the process of 
state courts, these being two channels through which much individually 
owned Indian land has slipped out of Indian hands. 

It is important to realize that what the Federal Government undertook 
to protect was not only the welfare of the Indians a slippery phrase 
which might have been twisted to justify a governmental oppression 
worse than that of private oppressors 22 but the rights of the Indians. 
Such rights included rights of personality, rights of self-government, and 
rights of property. Of the Indian's rights of personality and self-govern- 
ment we have already briefly spoken. Of the Indian property rights, the 
most important was the right of the tribe to land occupied from time 
immemorial. This right federal jurisprudence has consistently recognized. 

21. See Mitchel v. United States, 9 Pet. 711, 747 (1835); United States v. Shoshone 
Tribe, 304 U.S. m, 117 (1938); i Ops. Att'y. Gen. 465, 466 (1821); 34 Ops. Att'y. Gen. 
181, 187 (1924). 

22. See pp. 235-36, infra. 



The most recent instance of such recognition may be found in the 
opinion of the United States Supreme Court in the case of the Walapai 
Tribe. 23 In that case a railroad claimed certain lands in northern Arizona 
under a Congressional land grant made in 1866 in aid of railroad con- 
struction. 24 These lands were claimed by the Walapai Tribe as part of 
its ancestral homeland. The Supreme Court, reversing the decision of 
two lower courts, held that the railroad was not entitled to any land 
which had been occupied by the Walapai Tribe before the grant to the 
railroad and had not been voluntarily relinquished by the Indians. Thus 
was reaffirmed the principle laid down by Chief Justice Marshall more 
than a century ago 25 that the Indian tribes have a full and complete legal 
right to lands which they have continuously and exclusively occupied, 
and that this right will be protected by the federal courts against any 
interference by private parties or by unauthorized public officials. 

The validity of Indian possessory rights has been upheld by the Su- 
preme Court even against the statutory protector of the Indian, the Sec- 
retary of the Interior, in days when that officer proved less solicitous for 
the rights of the Indian than is the present incumbent of that position.* 
Thus, in the case of Lane v. Pueblo of Santa Rosa, the Supreme Court 
held that a group of Papago Indians had legal capacity to bring suit 
against the Secretary of the Interior to prevent that officer from disposing 
of Indian lands under laws relating to the public lands. Likewise, in 
1924, when the later notorious Secretary of the Interior Albert Fall sought 
to dispose of minerals in certain Indian lands without Indian consent, 
Attorney General Stone issued an opinion holding that the Secretary of 
the Interior had no right to dispose of such minerals in the manner pro- 
posed, for the reason that the minerals in question belonged to the In- 
dians, whose property rights were "complete and exclusive." 27 

The foregoing examples, while they are very far from giving the full 
content of the principle of federal protection of Indians, show at least 
the direction in which that principle has guided the development of our 
law and the intimate inter-dependence of this protective principle and 

23. United States, as Guardian of the Indians of the Tribe of Hualpai v, Sante Fe 
Pacific R.R. Co., 314 US. 339 (1941). 

24. Act of July 27, 1866 (14 Stat. 292). 

25. Johnson v. Mclntosh, 8 Wheat. 543 (U.S. 1823); Worcester v. Georgia, 6 Pet. 
515 (U.S. 1832). 

26. 249 U.S. 110 (1919). 

27. 34 Op. Att'y. Gen. 181 (1824). Advice to the same effect had been given to Secre- 
tary Fall by the Solicitor of the Department of the Interior (Opinion of Feb. 12, 1924. A. 

* [Ed. note: The reference is to Harold L. Ickes.] 



the companion principles of the political equality of races, the right of 
tribal self-government, and the doctrine of Federal sovereignty in Indian 


In the Anglo-American literary and historical tradition the Spaniards' 
treatment of the Indian has been so long held up to view as a pattern of 
cruelty and treachery that it may be considered heretical to argue at this 
late date that the humane principles which guide our own law in Indian 
affairs all faithfully follow the teachings of Spanish theologians and the 
edicts of Spanish kings. And yet this thesis will not sound so startling 
once we recognize that although the behavior of our own citizens and offi- 
cials towards the Indians has frequently been marked by acts of cruelty 
and treachery, it is by our own courts and laws that these acts of cruelty 
and treachery have been denounced, the perpetrators of these acts pun- 
ished, and the victims of these acts, or their descendants, recompensed in 
the only kind of measure that human compensation for such acts can 
follow. 28 So it was with Spain. It would be childish to gloss over the 
inhumane aspects of the Spanish conquest of the New World. Yet there 
is an important difference between these aspects of the treatment of 
Indians in the New World in the fifteenth and sixteenth centuries and 
what Nazis have done in the Old World in the twentieth. Against the 
cruelties of the Spanish invaders the clear voice of protest was raised by 
loyal Spaniards and faithful Catholics to the King of Spain and to the 
Pope himself, 29 and both King and Pope repeatedly denounced the acts 

* [Ed. note: In a later decision the Supreme Court did not go so far as to hold 
that Indian possessory rights not recognized by Congress were under constitutional 
protection. (Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955).)] 

28. At the present time [1942] there are pending before the federal courts, by au- 
thorization of Congress, Indian suits claiming an aggregate of more than $250,000,000 
for violations of treaties and other injuries. [Ed. note: Many additional claims were 
subsequently filed under the Indian Claims Commission Act which was passed in 1946 
(60 Stat. 1049). Much of the legal draftsmanship of the act had been entrusted to the 
author in his position as Associate and Acting Solicitor of the Department of the 

29. The report to the Emperor Philip, Brevissima Relation de la Destruyccion de 
las Indias, completed by Fra Bartholomew de las Casas at Valencia on December 8, 
1542, contains perhaps the most trenchant criticism of Spanish administration in the 
New World that has ever been written. It is presented to the Emperor by the writer 
on the basis of the stated assumption of the rectitude of royal hearts: "If any defect, 
wrong, and evil is suffered, there can be no other cause than that the Kings are ignorant 
of it; for if such were manifest to them, they would extirpate them with supreme in- 


of oppression committed by brigands that brooked no transoceanic con- 
trol. So it is that while the acts of cruelty and treachery of lawless 
men wrought a havoc that eventually brought Spanish rule in the New 
World to an end, the legal ideals which Spanish teachers proclaimed, and 
which Crown and Holy See ratified, provided a humane and rational basis 
for an American law of Indian affairs. 

i. Legal Equality 

Of the first principle of our own Indian law, the equality of races, the 
works of the Spanish theologian and jurist, Francisco de Vitoria, offer 
eloquent elucidation. In an attempt to justify the denial to Indians of the 
rights enjoyed by other humans, the argument had been widely advanced 
that Indians were heretics, tainted with mortal sin, and irrational. To 
this argument Vitoria replied that even heretics and sinners were en- 
titled to own property and could not be punished for their sins without 

dustry and watchful diligence." The following sections of the report typify the story 
that is told in some detail, largely on the basis of the personal observations of Las 
Casas. These observations were, to be sure, supplemented by testimony presented in 
various law courts and further supplemented by the observations of some of the co- 
workers of Las Casas in the Western Hemisphere. 

"The Indies were discovered in the year fourteen hundred and ninety-two. The 
year following, Spanish Christians went to inhabit them, so that it is since forty-nine 
years that numbers of Spaniards have gone there: and the first land, that they invaded 
to inhabit, was the large and most delightful Isle of Hispaniola, which has a cir- 
cumference of six hundred leagues. 

"Among these gentle sheep, gifted by their Maker with the above qualities, the 
Spaniards entered as soon as they knew them, like wolves, tigers, and lions which had 
been starving for many days, and since forty years they have done nothing else; nor do 
they otherwise at the present day, than outrage, slay, afflict, torment, and destroy them 
with strange and new, and diverse kinds of cruelty, never before seen, nor heard of, 
nor read of, of which some few will be told below: to such extremes has this gone that, 
whereas there were more than three million souls, whom we saw in Hispaniola, there 
are today, not two hundred of the native population left. 

"Now in God's name consider, you, who read this, what sort of deeds are these, and 
whether they do not surpass every imaginable cruelty and injustice, and whether it 
squares well with such Christians as these to call them devils; and whether it could 
be worse to give the Indians into the charge of the devils of hell than to the Christians 
of the Indies. 

"There are others, who go hunting with their dogs in the morning and when one 
is asked on his return for dinner how it has fared with him, he replies; 'it has fared well 



trial 30 and that the Indians were at least as rational as some of the 
peasants of Spain. 31 Implicit in the argument of Vitoria, who cites as 
precedents in support of Indian rights the cases of heretics and sinners 
in Europe and ancient Palestine whose rights were acknowledged by the 
highest Church authorities, is the doctrine that certain basic rights 
inhere in men as men, not by reason of their race, creed, or color, but by 
reason of their humanity. 

with me, because I have left perhaps fifteen or twenty villeins killed by my dogs/ 

"I was induced to write this work I, Fray Bartholomew de las Casas, or Casaus, 
friar of St. Dominic, who by God's mercy do go about this Court of Spain, trying to 
drive the hell out of the Indies, and to bring about that all those numberless multi- 
tudes of souls, redeemed with the blood of Jesus Christ, shall not hopelessly perish 
forever; moved also by the compassion I feel for my fatherland, Castile, that God may 
not destroy it for such great sins, committed against His faith and honour and against 
fellow creatures. . . ." See MacNutt, Bartholomew de Las Casas, His Life, His Aposto- 
late, and his Writings (1909) pp. 311, 314, 315-16, 330, 411-12. 

Here and there, in this terrible chronicle, a happier tale is told, as when Las Casas 
tells of the visit of Fray Jacomo, with four Franciscan monks, to Yucatan in 1554: 

"They sent ahead certain Indians from the province of Mexico as messengers, to 
inquire whether the natives were satisfied that the said monks should enter their coun- 
try, to bring them news of the one only God, who is God and true Lord of all the 

"They [the Indians] assembled many times and consulted about the thing, having 
first made many inquiries as to what sort of men these were, who called themselves 
fathers and brothers, and as to what they laid claim; and in what they were different 
from the Christians from whom they had suffered so many offences and such injustice. 

"They resolved at last to receive them, on the condition that they came alone with 
no Spaniards. . . . 

"And afterwards they gave them their own children, whom they love more than 
the light of their eyes, that they might train them. And they built them churches, 
monasteries and houses: and friars were invited to other provinces, to preach and 
bring the natives to the knowledge of God and of him whom they called the great 
king of Castile. 

"And, persuaded by the monks, the Indians did a thing never done again up to 
the present day; and all that some of those Tyrants pretend about those kingdoms 
being destroyed by the friars, is falsehood and lies. 

"Twelve or fifteen lords, each ruling many vassals and large territories, assembled 
their people and, after taking their votes and consent, subjected themselves of their 
own will to the dominion of the kings of Castile, receiving the Emperor, as King of 
Spain, for their supreme and universal sovereign; and they made some signs, like signa- 
tures, which I have in my possession, together with the attestations of the said friars." 
Id. at pp. 365-67. 

30. Victoria, De Indis et de Jure Belli Relectiones (Nys' ed. 1917) i, pars. 4-19. 
These dissertations were delivered in 1532 at the University of Salamanca where 
Franciscus de Victoria (or Francisco de Vitoria) was professor of theology. 

31. Id., par. 24. 



This doctrine of Vitoria was given papal support in 1537 by the Bull 
Sublimis Deus, in which Pope Paul III proclaimed: 

We, who, though unworthy, exercise on earth the power of our 
Lord and seek with all our might to bring those sheep of His flock 
who are outside, into the fold committed to our charge, consider, 
however, that the Indians are truly men and that they are not only 
capable of understanding the Catholic faith but, according to our 
information, they desire exceedingly to receive it. Desiring to provide 
ample remedy for these evils, we define and declare by these our 
letters, or by any translation thereof signed by any notary public 
and sealed with the seal of any ecclesiastical dignitary, to which the 
same credit shall be given as to the originals, that, notwithstanding 
whatever may have been or may be said to the contrary, the said 
Indians and all other people who may later be discovered by Chris- 
tians, are by no means to be deprived of their liberty or the posses- 
sion of their property, even though they be outside the faith of 
Jesus Christ; and that they may and should, freely and legitimately, 
enjoy their liberty and the possession of their property; nor should 
they be in any way enslaved; should the contrary happen, it shall 
be null and of no effect. 32 

Almost word for word, this declaration of human rights is repeated in 
the first important law of the United States on Indian relations, the 
Northwest Ordinance of 1787, adopted two years before the Federal Con- 
stitution, which proclaims: 

The utmost good faith shall always be observed towards the In- 
dians; their lands and property shall never be taken from them 
without their consent; and in their property, rights, and liberty they 
never shall be invaded or disturbed, unless in just and lawful wars 
authorized by Congress; but laws founded in justice and humanity 
shall, from time to time, be made, for preventing wrongs being done 
to them, and for preserving peace and friendship with them. 

In the Spanish Laws of the Indies one finds a consistent adherence to 
the principle of racial equality. Thus Book 4, Title 12, Law 9, declares: 
"We command that the farms and lands which may be granted to Span- 
iards be so granted without prejudice to the Indians; and that such as 
may have been granted to their prejudice and injury be restored to who- 

32. MacNutt, op. cit. supra note 29, p. 429. 



ever they of right shall belong." & A further provision included in the 
Laws of the Indies is one requiring special proceedings to determine 
whether farms owned by Spaniards are located to the prejudice of the 
Indians, and requiring the removal of any such farms. 34 Other provisions 
of the Laws of the Indies provided that Indians might establish mining 
claims in the same manner as Spaniards. 35 

More significant perhaps than any of these positive affirmations of In- 
dian rights is the negative fact that the Laws of the Indies contain no 
provisions which place the Indian in a position legally inferior to that 
of the Spaniards. This is not to say that Indians were not widely op- 
pressed under Spanish rule but merely to suggest that the oppression was 
in defiance of, rather than pursuant to, the laws of Spain. 

As the American Colonies appealed to the traditional legal rights of 
Englishmen when they rebelled against a royal administration that had 
violated those rights, so the peoples of Latin America appealed again and 
again to the humane Spanish legal ideal of racial equality in rebelling 
against administrations which had been faithless to that ideal. Thus it 
was that the Plan of Iguala, in which the Mexican War of Independence 
proclaimed its ideals, asserted: "All the inhabitants of New Spain, with- 
out distinction, whether Europeans, Africans or Indians, are citizens of 
this monarchy, with the right to be employed in any post according to 
their merit and virtues/' 36 

In this respect, then, the guiding legal principle of United States law 
is one with the principle of Spanish jurisprudence, whatever may have 
been the failure, on both sides, to make practice conform to ideal. 

2. Tribal Self-Government 

Again one may find in the writings of Vitoria the first clear formulation 
of the principle of tribal self-government. The factual basis of this right 
the Spanish jurist found in the fact that "there is a certain method in 
their affairs, for they have polities which are orderly arranged and they 
have definite marriage and magistrates, overlords, laws, and workshops, 
and a system of exchange, all of which call for the use of reason; they 
also have a kind of religion." 37 Against the pretensions of Spanish ad- 
ministrators who claimed Indian consent to their tyrannies, Vitoria 

33. Law of June 11, 1594 (RecopilaMn de Leyes de Los Reynos de las Indias [1681] 
bk. 4, tit. 12, law 9). 

34. Id., bk. 2, tit. 31, law 13 (Instructions to Viceroys, 1596, c. 21). 

35. Id., bk. 4, tit. 19, laws 14-16. 

36. United States v. Ritchie, 17 How. 525, 538 (U.S. 1854). 

37. Vitoria, op. cit. supra note 30, i, par. 23. 



sought to defend the principle of Indian self-government by pointing out 
that fear or ignorance on the part of the Indians would vitiate the legal 
force of such consent. 38 In this he set forth a principle which our federal 
courts have had frequent occasion to follow. 39 Nevertheless, Vitoria rec- 
ognized, and the Spanish Crown recognized, as the United States has 
done, that by democratic process an Indian group might limit its own 
powers, transferring certain powers of sovereignty to another protecting 
nation, 40 without thereby destroying its internal autonomy. This, in ef- 
fect, has been the basis of our 400 treaties with Indian tribes, and al- 
though the period of dealing with Indian tribes by treaty has passed, this 
principle of treating with tribes through voluntary agreement and ma- 
jority rule characterizes the adoption of tribal constitutions and charters 
by Indian tribes today under legislation sponsored in 1934 by President 
Roosevelt. 41 

). Central Control of Indian Affairs 

While one could not expect to see the principle of federal sovereignty 
over Indian affairs, which dominates the law of the United States, di- 
rectly paralleled in the jurisprudence of Spain, which was not a federal 
republic, the fact remains that the idea of central control, as distinguished 
from local control, was cardinal in both systems and served the same 
function. Just as the federal courts in the United States, and other federal 
officials, have had repeatedly to intercede for the protection of Indian 
rights threatened by white neighbors or local officials in Indian areas, so 
the Spanish Crown had repeatedly to intercede to protect the Indians 

38. Id., 2, par, 16. 

39. While the federal courts have never invalidated an Indian treaty on grounds of 
duress, they have consistently held that in view of the inequality of bargaining power 
all ambiguities in such treaties must be resolved in favor of the Indians. Worcester v. 
Georgia, 6 Pet. 515 (U.S. 1832); The Kansas Indians, 5 Wall. 737 (U.S. 1866); Winters 
v. United States, 207 U.S. 564 (1908). 

40. "A State can appoint any one it will to be its lord, and herefor the consent 
of all is not necessary, but the consent of the majority suffices. For, as I have argued 
elsewhere in matters touching the good of the State the decisions of the majority bind 
even when the rest are of a contrary mind; otherwise naught could be done for the 
welfare of the State, it being difficult to get all of the same way of thinking." Vitoria, 
op. cit. supra note 30, 3, par. 16. 

41. 48 Stat. 984, 25 U.S.C. 461 et seq. (1934). [Ed. note: The statute refers to the 
Wheeler- Howard Act of 1934, later known as the Indian Reorganization Act. It, as well 
as the tribal constitutions and charters adopted under it, was largely the result of the 
legal draftsmanship of the author in his official capacity as a member of the Solicitor's 
Staff of the Department of the Interior.] 



against similar threats. To this end, the office of "General Protector of 
all Indians" was bestowed by the King of Spain in 1516 upon the leading 
champion of Indian rights against official corruption and incompetence, 
Bartholomew de las Casas, 42 much as four centuries later a similar office 
was conferred by President Roosevelt upon a worthy successor in the 
courageous tradition of Las Casas, John Collier. To this end, too, the 
Council of the Indies, in which supreme power over Indian affairs was 
vested, was established as a direct adviser to the King of Spain, and su- 
preme over all local officials in questions pertaining to Indian affairs. 
Some such motive must have underlain the insistence of Fra Vitoria that 
Spaniards in the New World, even when unjustly attacked by Indians, 
could "build fortresses and defensive works" but could wage war only 
with "the authorization of their sovereign" 43 and provided that such war 
was not used as a pretext for slaying the conquered or despoiling them of 
their goods or seizing their cities. 44 How close these words are to the 
language of the Northwest Ordinance of 1787, which forbids local In- 
dian wars by declaring: "and in their property, rights, and liberty they 
never shall be invaded or disturbed, unless in just and lawful wars au- 
thorized by Congress: . . ." 

It is a striking fact that so often in the history of Spain, Spanish- 
America, and the United States, oppression of Indians has come from 
local neighbors and officials and help has come from a far-off central 
government. Perhaps it is easier for legal ideals to live in a place far 
enough from the facts to which they are applied so that perspective in 
judgment is possible and long-range values are not sacrificed to imme- 
diate, petty advantages. 

4. Protection of Indian Rights 

The doctrine that the Crown had a special responsibility for the protec- 
tion of Indian rights was highly developed in Spanish law. Thus, for 
example, the King's attorneys were required to appear on behalf of the 
Indians in all land cases, and in all cases involving land grants, to which 
Indians might be parties. 45 Where the suit was between the Indians and 
the Crown the court was required to appoint a special attorney for the 
Indians. 46 That Spaniards often trespassed against Indian rights was 

42. MacNutt, op. cit. supra note 29, p. 86. 

43. Vitoria, op. cit. supra note 30, 3, par. 6. 

44. Ibid. 

45. Law of May 24, 1571 (op. cit. supra note 33, bk. 2, tit. 18, law 36). 

46. Law 35, approved Feb. 13, 1554. 



clear, as is manifest from the fact that in Spanish law, as in the law of 
the United States, a statute for the protection of Indian rights will often 
be substantially reenacted from time to time, indicating that the earlier 
enactment has come to be disregarded or entirely forgotten. Such a stat- 
ute, for instance, is the Royal Cedula of June 4, iGSy, 47 which reenacted 
long-standing prohibitions against trespass upon Indian lands and set 
forth the occasion of its enactment in these terms: Spanish ranch owners 
"are encroaching upon the lands of the latter [Indians], taking the same 
away from them, either by fraud or violence, by reason of the poor In- 
dians abandoning their houses and settlements this being what the Span- 
iards long for and aim at, . . ." 

Not only did Spain enact ordinances of special stringency to protect 
Indian lands against trespass, but it sought likewise to protect Indians 
against the superior bargaining power of the white race by outlawing 
all transfers of Indian property not made before an appropriate judicial 
officer under conditions of notice designed to bring to the Indian an 
adequate return for that which he sold. 48 

Where injuries were committed against Indians by Spaniards, the 
Spanish law required that such injuries should be punished more severely 
than similar injuries against Spaniards. 49 

Many other instances might be cited of specific laws exemplifying the 
responsibility of the Crown for the protection of Indian rights. In Span- 
ish jurisprudence, however, as in our own, there was always danger that 
a concept of special responsibility for the protection of Indian rights 
might come to be transformed into a justification for the exploitation of 
Indians and the confiscation of their property. The institution of guard- 
ianship (encomienda) in Hispanic America, like the old "reservation 
system" in the United States, shows how easily this transition may take 
place. It must be said, however, that some of the early Spanish jurists 
clearly saw and warned against this danger. Thus, Vitoria in considering 
claims to a power of guardianship based upon the superior administra- 
tive capacities of the Spaniards as compared with the natives, while de- 
clining either to confirm or condemn such a claim, is careful to point out 

47. Hall, Laws of Mexico (1885) p. 64. 

48. Op. cit. supra note 33, bk. 6, tit. i, law 27. 

49. The Law of Dec. 19, 1593, provides: "ordenamos y raandamos que scan castigados 
con mayor rigor los espanoles que injuriaren, u ofendieren, o maltrataren a indios, 
que si los mismos delitos se cometiesen contra espanoles y los declaramos por delitos 

(We ordain and command that Spaniards who injure or offend or maltreat Indians 
shall be punished with greater severity than if the same tortious acts had been com- 
mitted against Spaniards, and we declare such acts to be public offenses*) 



that if such a claim is valid it would have to be subject "to the limitation 
that any such interposition be for the welfare and in the interests of the 
Indians and not merely for the profit of the Spaniards. For this is the 
respect in which danger to soul and salvation lie." 50 An echo answers, 
400 years after, in the voice of Justice Cardozo, distinguished descendant 
of Fra Vitoria's compatriots: 

Power to control and manage the property and affairs of Indians 
in good faith for their betterment and welfare may be exerted in 
many ways and at times even in derogation of the provisions of a 
treaty. . . . The power does not extend so far as to enable the Gov- 
ernment "to give the tribal lands to others, or to appropriate them 
to its own purposes, without rendering, or assuming an obligation 
to render, just compensation . . . ; for that 'would not be an ex- 
ercise of guardianship, but an act of confiscation/ "... The right 
of the Indians to the occupancy of the lands pledged to them, may 
be one of occupancy only, but it is "as sacred as that of the United 
States to the fee." . . . Spoliation is not management. 51 



To show that the basic principles of the law of the United States relating 
to Indian rights were derived from Spanish sources, it is not enough to 
show a basic similarity of principle in the two legal systems. Conceivably 
such similarity might be fortuitous or the result simply of similar prac- 
tical situations calling for similar legal treatment. But I think it can be 
shown that the similarities of principle noted in the foregoing parts of 
this paper were not fortuitous or the outcome of legal systems isolated 
from each other but were rather the result of definite Spanish influences 
which molded the development of legal doctrine in the United States. 

To trace the historic ways in which Spain influenced this development 
of legal doctrine would call alike for space and for talents not available 
to this writer. At most we can attempt to deal with a few ways in which 

50, Vitoria, op. cit. supra note 30, 3, par. 18 

51. Shoshone Tribe v. United States, 299 U.S. 476, 497-498 (1937). This was a case 
in which the Federal Government, after recognizing the claim of the Shoshone Tribe 
to certain lands, placed other Indians on part of these lands. The Supreme Court 
ultimately affirmed a judgment against the Federal Government in favor of the 
Indians in the amount of $4408444.23 plus interest. United States v. Shoshone Tribe, 
304 U.S. 111 (1938). 



such influences operated, trusting that these operations will be found by 
legal historians, upon further research, to be typical. 

In the first place, we must recognize that our Indian law originated, 
and can still be most clearly grasped, as a branch of international law, 
and that in the field of international law the basic concepts of modern 
doctrine were all hammered out by the Spanish theological jurists of the 
sixteenth and seventeenth centuries, most notably by the author of the 
lectures De India, Francisco de Vitoria. It was Vitoria that the Seventh 
Pan-American Conference, on December 23, 1933* acclaimed as the man 
who "established the foundations of modern international law." 52 

While Vitoria himself is not directly cited in any of the early opinions 
of the United States Supreme Court on Indian cases, these opinions fre- 
quently refer to statements by Grotius and Vattel that are either copied 
or adapted from the words of Vitoria. It is thus clear that the tradition 
of legal teaching carried Vitoria's theories on Indian rights to the judges 
and attorneys who formulated our legal doctrine in this field. They re- 
mained free, of course, to reject Vitoria's theories, but they could not be 
ignorant of the idea that Indian tribes were dependent nations, pos- 
sessed of certain rights of sovereignty and property, yet requiring special 
governmental protection. The history of American legal doctrine reveals 
that no intellectually satisfying substitute for this basic theory of Indian 
relations has ever been developed. 

The influence of Spanish legal teaching upon the development of legal 
thought in the United States was supplemented by the influence exerted 
through official Spanish legal authority. Many of the early opinions of 
the United States Supreme Court in Indian cases freely cite Spanish 
decisions, statutes, and other authorities. 53 In part, this is a result of the 
theory that in international law the nationality of the source cited is of 
no special consequence. In part, however, the use of Spanish authorities 
is a result of the fact that most of the territory of the United States was 
once under Spanish dominion. Under the accepted doctrine of inter- 
national law that the law of the prior sovereign remains in force in ceded 
territory until changed by the affirmative action of the new sovereign, all 
sorts of questions involving Indians require for their decision an ex- 
amination of Spanish legal authorities. 

52. See also the brochure on the Spanish Origin of International Law (1928) by 
James Brown Scott, former Solicitor for the Department of State and President of the 
American Institute of Law, the American Society of International Law, and the Institut 
de Droit International, which reaches the conclusion: ", . . in the lecture of Vitoria 
on the Indians, and in his smaller tractate on War, we have before our very eyes, 
and at hand, a summary of the modem law of nations." 

53 . Johnson v. Mclntosh, 8 Wheat. 543 (U.S. 1823); Mitchel v. United States, 7 Pet. 
711 (U.S. 1835); Choteau v. Molony, 16 How. 203 (UJ5. 1853). 



Moreover, the relevance of Spanish law was formally recognized in 
treaties by which the United States undertook to recognize property and 
other rights enjoyed by the inhabitants of the ceded territory under the 
prior sovereignty. In all Indian cases arising in former Spanish territory 
it became relevant to inquire into the rights of Indians under the former 
sovereign. But neither France, in the case of the Louisiana cession, 54 nor 
Mexico, in the case of the Mexican cession and the Gadsden Purchase, 55 
had made any important changes in the fabric of Spanish law in this 
field. Thus, again, the trail of legal research in cases in the courts of the 
United States led directly to Spanish authorities. 

The Walapai case, 56 to which reference has already been made, offers 
a recent illustration of the connection between the law of Spain and that 
of the United States. In that case eminent counsel employed by the rail- 

54. The Treaty of April 30, 1803, for the cession of Louisiana, provided: 

"Art. III. The inhabitants of the ceded territory shall be incorporated in the Union 
of the United States, and admitted as soon as possible, according to the principles 
of the Federal constitution, to the enjoyment of all the rights, advantages and immuni- 
ties of citizens of the United States; and in the mean time they shall be maintained 
and protected in the free enjoyment of their liberty, property, and the religion which 
they profess." 

"Art. VI. The United States promise to execute such treaties and articles as may 
have been agreed between Spain and the tribes and nations of Indians, until, by 
mutual consent of the United States and the said tribes or nations, other suitable 
articles shall have been agreed upon." 

55. Thus the Treaty of Guadalupe Hidalgo (Treaty of Feb. 2, 1848, 9 Stat. 922) 

"Article VIII. Mexicans now established in territories previously belonging to 
Mexico, and which remain for the future within the limits of the United States, as 
defined by the present treaty, shall be free to continue where they now reside, or 
to remove at any time to the Mexican republic, retaining the property which they 
possess in the said territories, or disposing thereof, and removing the proceeds wher- 
ever they please, without their being subjected, on this account, to any contribution, 
tax, or charge whatever. 

"Those who shall prefer to remain in the said territories, may either retain the 
title and rights of Mexican citizens, or acquire those of citizens of the United 
States. . . . 

"In the said territories, property of every kind, now belonging to Mexicans not 
established there, shall be inviolably respected." 

"Article IX. Mexicans who, in the territories aforesaid, shall not preserve the char- 
acter of citizens of the Mexican republic, conformably with what is stipulated in the 
preceding article, shall be incorporated into the Union of the United States, and be 
admitted at the proper time (to be judged of by the Congress of the United States) to 
the enjoyment of all the rights of citizens of the United States, according to the princi- 
ples of the constitution: and in the mean time shall be maintained and protected 
in the free enjoyment of their liberty and property, and secured in the free exercise 
of their religion without restriction." 

56. 314 U.S. 339 (1941). 



road argued, and the courts below held, that although tribal occupancy 
rights had long been respected in other parts of the United States, the 
Walapai Tribe was located in the area of the Mexican Cession, and there- 
fore, since Spanish law, it was argued, recognized no Indian right of oc- 
cupancy, the Walapai Tribe came under the dominion of the United 
States without any land rights whatsoever. The Solicitor of the Interior 
Department, on the other hand, cited many passages from the writings 
of Vitoria and from the Laws of the Indies to show that Spain recognized 
tribal occupancy rights to the same extent as did the United States. In its 
final decision the Supreme Court rejected as unsound the argument of 
the railroad on Spanish law and held that Indians in former Spanish 
territory were in as favorable a legal position, with respect to land rights, 
as any other Indians in the United States, citing in support of this hold- 
ing earlier cases which recognized the community of doctrine between 
Spain and this country on the point. 

Finally, one must recognize that throughout the formative period of 
our Indian law the Indians themselves had a good deal to say about the 
disposition of their territory. For a long time they outnumbered the 
white immigrants, and while at first inferior in weapons they speedily 
acquired and mastered the white man's firearms. Moreover, they knew 
vastly more about their land and its agricultural 5T and military 58 uses 

57. It has been estimated by competent authorities that four-sevenths of the total 
agricultural production in the United States (in farm value) consists of plants do- 
mesticated by Indians and taken over by whites, and it has been noted that where 
the whites took over plants they also took over Indian methods of planting, irrigation, 
cultivation, storage, and use. See Edwards, Agriculture of the American Indian 
(U.S. Dept. of Agriculture, 1933) p. v; Bureau of American Ethnology Bulletin, i, 
No. 30, 25. 

58. In the case of Scott v. United States and Apache Indians, 33 Ct. Cl. 486 (1898), 
the Court of Claims had to determine whether the destruction of certain property 
by Apache Indians had occurred by reason of a state of war. In answering this 
question in the affirmative, the court observed: 

"The military forces engaged at the time of the surrender consisted, on the part 
of the United States, of 42 companies of cavalry and infantry; on the part of our 
ally, the Republic of Mexico, of 4,000 men; and on the part of the common enemy, 
the Apaches, of not more than 50 men and a few women. 

"... But the costly record of Geronimo is one which never can be questioned. 
His campaign taxed the powers of two great civilized governments; it involved a 
treaty which allowed the forces of the one to cross the frontier of the other; it 
received the energy and experience and ability of our two greatest masters of Indian 
warfare, General Crook and General Miles, The war was waged, on the part of the 
United States at least, with the best military appliances of modern warfare, including 
steam, electricity, and the heliostat; and, more valuable than any other element in 
the military case, it was an instance of Apache against Apache, for our troops were 



than did the newcomers. By throwing their weight to the British they 
played a decisive role in wiping out the French Empire in North America. 
Their attitude towards Spain was a matter of great concern to British and 
American statesmen through the eighteenth and well into the nineteenth 
century. Britain and, later, the United States were in a very real sense 
competitors of Spain for Indian favor, and they could not hope to win 
that favor if they offered less attractive terms. If the Indians could gain 
security for their lands and respect for their tribal autonomy from Spain, 
they were not likely to accept the protection of Britain or that of the 
United States on less favorable terms. Thus, in the competition for ac- 
ceptance, the doctrine of Indian rights first advanced by Vitoria had such 
an appeal to the Indians that Britain and the United States both felt 
compelled to accept it as a basis of bargaining. Later, of course, the pres- 
sure of competition was removed, but then the respect for the sanctity 
of the plighted word operated to prevent any wholesale repudiation of 
those principles which had once been dictated by practical necessity. 

So, in these various ways, by teaching, by legal authority, by treaty, 
by the force of competition in the market-place of ideas, the doctrines 
that had been developed by Spanish jurisprudence came to play a guiding 
role in the development of the conception of Indian rights in the law 
of the United States. Whether these ideas will play a still larger role 
in the development of inter-racial and inter-cultural adjustments in the 
future is one of the most important issues before our generation. It is 
an issue on which the destiny of great as well as small nations is involved. 
That the loyalty of native groups can be secured to the democratic cause 
is proven by the full and generous aid that American Indians have ren- 
dered to the Federal Government in a time of crisis. What distinguishes 
the American Indians from other native groups is not an intrinsic ele- 
ment of racial character, but the nature of their relationship with a gov- 

led by Apache scouts, who faithfully and heroically served the Government. Yet 
Geronimo armed his band with the best of modern breech-loaders and ammunition, 
and even equipped them with field glasses taken from us, and drew his supplies from 
wherever he would, and inflicted incalculable damage on the country of both of 
his enemies, and carried on his last campaign successfully for five months. There is 
not, probably, in the history or traditions or myths of the human race another in- 
stance of such prolonged resistance against such tremendous odds. 

"Moreover, the Indian soldier was successful even in the ending of his campaign; 
for the surrender of this paltry band involved more prolonged negotiation than the 
army of Burgoyne at Saratoga or of Lee at Appomattox, and concluded by the granting 
of terms that the surrender be 'as prisoners of war to an army in the field' terms 
which effectually removed the sagacious savage and his followers beyond the juris- 
diction of the civil authorities." (pp. 487-488). 



ernment which, while protecting their welfare and their rights, is com- 
mitted to the principles of tribal self-government and the legal equality 
of races. 

In essence the situation in which Spanish juristic thought first operated 
on this continent is not dissimilar to that which obtains today over a 
large part of the world. Two factors now, as then, are involved: a native 
population in possession of areas rich in natural resources but without 
the techniques, or without the incentives, needed for the full develop- 
ment of these resources, and, on the other hand, a population with the 
desire and techniques to exploit these material resources. The problem 
now, as then, is to preserve the rights and liberties of native groups while 
permitting the fullest development of the world's resources. In seeking a 
modus vivendi for racial groups of varying cultures, those who will build 
a better postwar world can well afford to ponder the legal relationship 
of American Indians to the Federal Government, which, after three cen- 
turies of experience and experimentation, often bitter, conforms more 
closely today than ever before to the humane legal ideals first formulated 
by the theological jurisprudence of sixteenth century Spain. 


Indians Are Citizens! 

Why, 20 years after the last non-citizen Indian was endowed with citizen- 
ship by act of Congress, do so many well-meaning people think that In- 
dians are not citizens? 

1 suppose that this very widespread misimpression is a natural product 
of the fact that Indians are frequently not permitted to spend their own 
money as they please, that they frequently hold lands which are exempt 
from state property taxes, that on their own reservations they are gen- 
erally subject to tribal customs and ordinances rather than to state crimi- 
nal laws, and that they receive various services from the Federal Govern- 
ment, services which, in our prevailing scheme of values at least in the 
scheme of values that prevailed until recent years are signs of inferior 
status. Now the fact is that all these legal peculiarities which we are so 
prone to consider marks of inferiority are either special rights which 
Indians have secured for themselves by contract, treaty, or statute or are 
incidental appendages to such special rights. Specifically, the right to 
hold ancestral lands free of state taxes is a right which was solemnly 
promised to the Indians by the United States in countless treaties and 
statutes. In exchange for this promise valuable lands were ceded to the 
Federal Government. This promise was expressly ratified by practically 
all of the states which are affected by it. This right of tax exemption, 
the Supreme Court has said, is a valuable property right of which the 
Indians may not be deprived without their consent. Similarly, the right 
to local self-government and the correlative right to be free from the 
obligation of state laws while on their own reservations are rights upon 
which most Indian tribes have insisted and which have been solemnly 
guaranteed to them in statute and treaty, parts of an original sovereignty 
which they have not surrendered and which Congress has never pre- 
sumed to abrogate. 

Even the laws which prohibit the sale of liquor to Indians must be 
viewed historically as a concession made by the Federal Government in 
response to solemn representations made by various Indian tribes asking 

Published in The American Indian, 1944. 



for the assistance of the Federal Government in curbing a liquor traffic 
which the Indians did not create, did not want, and could not control. 
Our first Indian liquor law was enacted in 1805, in response to an Indian 
petition to what the Indians called "The Great Council of the Sixteen 
Fires/' which has now become "The Great Council of the 48 Fires." If 
the time has come, as many think, when Indians no longer want or need 
this special protection and view it rather as a discriminatory imposition, 
then I have little doubt that Congress, with the cooperation of the Inte- 
rior Department, will proceed to repeal or radically modify the existing 
Indian liquor laws.* 

Even such a matter as the disability of the Indian to dispose of re- 
stricted land or funds without the consent of some Government official, 
when viewed in its proper historical perspective, is seen to be an inevita- 
ble incident of Indian rights resulting from solemn promises of the 
Federal Government. If the Federal Government has promised to protect 
Indian ownership of certain property, it must inevitably scrutinize the 
various transactions by which the Indian might be separated from this 
property. What is not always remembered is that this special protection 
is fundamentally a matter of agreement with the Indians concerned. 
It does not follow from the color of their skin or the quality of their 
blood. The Indian who earns his own living as a carpenter does not 
need to ask any one's permission to spend his wages as he pleases. On 
the other hand if an Indian receives a special payment from the Govern- 
ment because he is a member of a tribe which has rights under a treaty 
with the Government, it seems to me perfectly proper and perfectly com- 
patible with the Indian's citizenship for the Congress that makes this 
appropriation to require that it be spent in a way that will benefit future 
generations of the tribe in question. 

I do not mean to suggest that all that the Federal Government does in 
the guise of protecting Indian property is justified. I do not think that 
is the case. Management may verge imperceptibly into spoliation. And 
I think that often we underestimate the cost of a protection that is not 
wanted, and that the Indian Service and the Indians might be better 
off if our protection of Indian property were radically curtailed, limited, 
perhaps, to the Indians' capital assets, leaving all Indians free to spend 
the sustained income from such assets as they pleased. But the important 
point seems to me to be that all the peculiar legal relationships that 
seem to encumber the Indian are in the final analysis really obligations 

* [Ed. note: Repeal of the discriminatory features of the Indian liquor laws for 
which the author fought for many years came with the Act of August 15, 1953, 67 
Stat. 586.] 



of the Federal Government to the Indian which only the Indian himself 
can waive. To the great majority of Indians today these special rights 
and privileges are of high value. 

The misconception that the peculiar position of the Indian is a posi- 
tion of inferiority, of second-grade or incomplete citizenship, offers a 
serious threat to Indian well-being. For one thing, the aid that friends 
of the Indian can render in the protection of Indian rights is under- 
mined as soon as we concede that Indians are not entitled to all the rights 
of any other citizens. But even more serious is the fact that this popular 
misconception provides a platform on which those who wish to do good 
to the Indians but do not know how to do it support those who wish to 
separate the Indians from their property and realize that this can be 
accomplished only by giving a bad name to the mechanisms which are 
now available to protect the Indian. If the would-be grafters and de- 
spoilers of Indian wealth can give the Indian Bureau, and the institution 
of restricted property, and the institution of tax exemption, a bad enough 
name, by stressing the alleged incompatibility of these institutions with 
full citizenship, then they can claim a high moral purpose in stripping 
the Indian of the protections which the law affords him and in despoil- 
ing him of the property which the law now protects. And all history 
shows that plunder, to be successful on a large scale, must be able to point 
to a high moral motivation. 

Perhaps I can put my point another way by saying that the peculiar 
legal status of the Indian is not a matter of race or birth but is a matter 
of contract or consent. The special rights of the Indians are like the 
rights of other groups that have special claims upon the Federal Gov- 
ernment, for example, homesteaders, or veterans, or holders of federal 
securities, or government employees, or government contractors. Each 
of these groups has special rights, because of services performed, and 
incidental to these special rights are certain special disabilities. A home- 
steader may not alienate his homestead. A government employee may 
not prosecute claims against the government, which is the right of any 
other citizen. A government contractor may not hire and fire as he pleases 
or work his employees more than a certain number of hours. These dis- 
abilities are not forms of discrimination against oppressed groups, but 
simply necessary safeguards incidental to the process of securing special 
benefits or payments from the Federal Government. By and large, it 
must be remembered, whatever we have given to the Indians and what- 
ever we give them today is not a matter of charity, but is a part of a series 
of real estate transactions through which about 90 per cent of the land 
of the United States was purchased from the Indians by the Federal Gov- 



ernment. Failure to appreciate this fact leads to all sorts of ludicrous 
and unjust results. For example, the fact that Indians generally stipulated 
that payments for land cessions should be made in the form of goods and 
services came to be pushed rapidly into the background of public opinion, 
with the result that well-meaning blunderers rose to denounce the ren- 
dering of such services and goods as degrading and encouraging idleness, 
and persuaded Congress to pass a law prohibiting the distribution of 
rations to able-bodied Indians unless they performed services in exchange. 
Imagine the howl of anguish that would have gone up if Congress had 
determined that payment of government bonds to their holders encour- 
aged idleness and should not be effectuated with respect to able-bodied 
bondholders except upon performance of equivalent services. This is 
a typical example of the double standard which is engendered by a sense 
of race superiority and an ignorance of history. 

I know of no federal law which discriminates against anybody because 
he is of Indian blood. The peculiar status of the Indian today under 
federal law is not a diminution of full citizenship but an addition to full 
citizenship. The peculiar incidents of Indianhood are, by and large, privi- 
leges which the Indian can reject rather than disabilities imposed upon 
him without his consent. 

Where the incidental burdens that go with special rights come to out- 
weigh the rights themselves in significance, the individual Indian can 
reject the entire complex of special legal relationships. He can for all 
legal purposes cease to be an Indian whenever he wants to do so. He can 
do this most simply by giving up his tribal membership. This was decided 
as long ago as 1879 in the case of United States ex rel. Standing Bear v. 
Crook. In that case the Interior Department and the Army tried to 
compel a band of Ponca Indians, led by Chief Standing Bear, to remain 
on a reservation assigned to that band in the Indian Territory. The 
Indians left the reservation en masse, declaring that they would no longer 
accept the status of tribal Indians, and when the Army, under General 
Crook, attempted to return them to the reservation assigned them, they 
secured in the Federal courts a writ of habeas corpus against General 
Crook. In that case Judge Dundy pointed out that Congress had de- 
clared the right of expatriation to be "a natural and inherent right of 
all people, indispensable to the enjoyment of the rights of life, liberty, 
and the pursuit of happiness" and that members of an Indian tribe 
were as clearly entitled to expatriate themselves from their tribal alle- 
giance as were immigrants from any foreign land who sought to renounce 
their former allegiance. Once an Indian has severed his tribal relations 
he no longer comes within the scope of the Federal power to regulate 



commerce and make treaties with Indian tribes, and therefore, I think, 
does not fall within any authority which has been conferred upon ad- 
ministrative agencies of the Federal Government pursuant to those con- 
stitutional powers. 

The subject of the special position of the Indian in our federal law is 
a complex one, upon which books might be written, and undoubtedly I 
have over-simplified the situation in my observations thus far. But I 
think I have said enough to indicate the unhistorical character of the 
popular idea that Indians are less than full citizens and the way in which 
this idea emerges from a failure to recognize that the special status of the 
Indian is, by and large, something that he has bought and paid for and 
that he can relinquish whenever he chooses to do so. 

This brings us to the second problem: 

What can be done to safeguard Indians in the exercise of their rights? 

If Indians are, by and large, as I think, an underprivileged minority 
group, a group against which many illegal or extralegal forms of oppres- 
sion and discrimination are practiced, then the problem of protecting the 
legal rights of Indians is not a purely individual problem. Rather, it is 
a problem which affects Indians as a group and therefore profoundly 
affects the rest of society, for while racial oppression has seldom destroyed 
the people that was oppressed, it has always in the end destroyed the 
oppressor. The rights of each of us in a democracy can be no stronger 
than the rights of our weakest minority. "Even as ye do unto the least of 
these, so ye do unto me/' When John Collier, years ago, brought these 
words of the great Representative of oppressed people everywhere to bear 
upon our Indian question, the entire problem was illumined with a 
pregnant insight. Only as we appreciate the fact that in protecting Indian 
rights we are protecting ourselves, our democracy, and the rights of our 
own children, only as we recognize these truths, can we free our work 
on behalf of Indian rights from the taint of benevolent superiority which 
has so often made "charity" an odious and shameful word to its recipients. 
Only in so far as we realize that the struggle for Indian rights is simply 
one sector in a worldwide struggle for human rights, can we see our own 
efforts in proper perspective. Now, if we are to wage an effective struggle 
for the protection of Indian rights, the first thing we have to do is to 
know what the rights are that need protection. Without attempting to 
enumerate such rights I should like to suggest that by and large the rights 
that are important to Indians are not rights of citizenship, that is to say, 
rights accorded to all citizens and denied to non-citizens, but are either 
human rights or tribal rights. 

In the first place, there are certain human rights guaranteed to all per- 


sons in the United States, whether or not they are citizens the right to 
be free from involuntary servitude, the right to be free from unreasonable 
restraints on person or property imposed without due process of law, the 
right to worship in accordance with one's conscience, and all the other 
rights which are set forth in the Bill of Rights of our Federal Constitu- 
tion and in the Bills of Rights of our various states. 

Among the rights which all persons in the United States have, whether 
or not they are citizens, is the general right to the equal protection of 
the laws. In part, this right is protected by the Fourteenth and Fifteenth 
Amendments to the Constitution. In my opinion, the actions of the states 
of New Mexico and Arizona in denying Indians within these states the 
right to vote is a clear violation of the Federal Constitution. I hope that 
one or another of the organizations interested in Indian affairs will help 
the Indians affected by this discrimination to undertake the necessary 
legal action to put an end to it.* Other forms of official and unofficial 
discrimination against Indians exist in many states. In recent years the 
Interior Department has been increasingly successful in persuading var- 
ious state governments to stop various forms of official discrimination, in 
voting, in the distribution of social security benefits, and in many other 
matters, but there is still much work to be done on these lines. However 
much the Indian Bureau may do for the protection of these human rights 
and even if it were not necessary sometimes to protect the Indian from 
the Indian Bureau this task is one that can never be fully carried out 
by any government agency .f That is why the private organizations which 
have devoted themselves to the performance of that task deserve the 
gratitude of all true Americans. 

Apart from the general human rights in which Indians, like all other 
minority groups, need legal aid and help in the enlightening of public 
opinion, there is a second field in which the Indians need protection. 
This is the field of special rights that Indians have as members of tribes. 
Indians who are members of recognized tribes have certain rights of self- 
government, frequently rights of communal land ownership, often rights 
under special treaties or agreements made between their tribe and the 
Federal Government, or under tribal constitutions and charters which 
have been approved by the Federal Government. Most Indian groups 

* [Ed. note: Discrimination against these Indians in the exercise of their franchise 
was ended as a result of Felix Cohen's efforts as General Counsel of the Association 
on American Indian Affairs. See Ed. note at the end of Note 3, p. 233 and see also 
below, pp. 328-30,] 

f [Ed. note: As a private attorney and General Counsel of the Association on Ameri- 
can Indian Affairs, Felix Cohen later contributed toward the recognition of Indian 
rights with regard to social security and other matters. See below, pp. 330-331.] 



that I know are desperately in need of advice and protection in the main- 
tenance of these rights. Ignorance of the nature of these rights is so 
widespread and so deep that the burden of assistance in these matters 
must inevitably fall on the few individuals and agencies that have a 
special knowledge of these problems. 

I should not want to leave the impression that I think of law as an 
end in itself. The legal position of the Indian, if it is to be viewed intel- 
ligently, I think, must be viewed as part of a much broader problem, what 
the anthropologists call "the problem of acculturation." From the stand- 
point of ethics, the problem of acculturation is how we can make available 
to the Indians the highest fruits of our culture and how the Indians can 
make available to us the best things of their own culture. The process is 
not a process of one person melting down another and making something 
else out of him, but a two-way process, a process of give and take. It is 
not a process in which white people have benevolently bestowed upon 
the Indians the best of white civilization, taking nothing in exchange. On 
the whole, I think, it is the Indians who have done most of the giving 
and the whites who have done most of the taking. In a field that we can 
measure in dollars and cents, we know that more than half of our agricul- 
tural produce, in value, consists of the creations of Indian agriculture. 1 
In some other less tangible fields the extent of the Indian contribution to 
our American life is even higher. 

Now, if we apply the concepts of assimilation and acculturation to the 
legal field, what do we find? We find, I think, that the one-way assimila- 
tionists have always been concerned to abolish whatever is peculiar about 
the legal position of the Indians. I have already commented on the dis- 
astrous consequences that would attend the success of that effort. Just as 
racial conceit has been responsible for the effort to reduce all immigrants 
to a mass-production uniform American type, through the use of a melt- 
ing pot designed to liquidate the distinctive cultural qualities of every 
immigrant group, just as this ideal has been applied to wipe out Indian 
arts and crafts and other vital and colorful Indian traditions, so a similar 
racial conceit has obtained in the field of law. We have too long accepted 
the view of American lawyers that the law of the United States is the 
"true embodiment of everything that's excellent," from which it seems to 
follow that if we apply this law to Indians, wiping out all peculiarities of 
tribal law and custom in the process, we will have conferred a priceless 
boon upon the Indian. If we can rise above our racial and national con- 
ceit and look at the matter objectively or scientifically, I think we shall 

i. See Edwards, Agriculture of The American Indian (U.S. Dept. of Agriculture, 
Library No. 23, sd ed., 1933), p. 5. 



find that in many respects the legal institutions of Indian life are superior 
to those of their white neighbors. Compare, for instance, the criminal 
code of any state of the Union with the criminal code of any Indian tribe. 
In the state code you will find thousands upon thousands of criminal 
laws, so many that not more than i/ioooth of i% of the population of 
any state in the Union could possibly have read all the criminal laws of 
that state. Among these laws you will generally find barbarous provisions 
involving prison terms of 10 to 20 years for trivial offenses. You will find 
laws so vaguely worded that none of us could go through a day without 
violating them. In contrast, you will generally find in the criminal code 
of any Indian tribe a document that any one can read, and that many 
Indians do read, in the space of half an hour, with clear and simple 
definitions of offenses and with a very humane scale of punishments. The 
contrast is so striking that when the War Relocation Authority two years 
ago searched about for a model code of law and order to regulate con- 
duct in Japanese-American communities, the WRA officials and the Jap- 
anese-Americans joined in choosing an Indian tribal code, rather than a 
state code, as a model from which to start. 

Again, in dealing with our problem of rural land tenure in the United 
States, I think we shall make much greater progress if, instead of seeking 
to impose the worship of the fee simple absolute upon the Indians we 
adapt to white use some of the basic principles of Indian land tenure. We 
know that the worship of the fee simple absolute has in the space of two 
generations, according to the President's Committee on Farm Tenancy, 
raised the percentage of tenant farmers in South Dakota from 4.4% in 
1880 to 48.6% in 1935, and in many western states the equity of operating 
farmers in their lands has become little more than %th, nearly %ths of 
the value of their lands having come into the hands of landlords and 
mortgage holders. Those Indians who have been most successful in keep- 
ing their lands and in making the highest productive use of them are 
precisely those Indians who have retained ancient forms of land tenure 
that have been tried and tested in centuries of experience on American 

Let me pose this problem of one-way assimilation versus two-way ac- 
culturation in more concrete terms. Twenty years ago, when the drive to 
assimilate the Indian to the legal position of non-Indians was at its 
height, what were the specific things that made Indians peculiar, and 
therefore supposedly inferior, in the eyes of their white neighbors? 

First, I suppose, was the fact that Indians frequently received supplies 
of food or other forms of relief from the government in their old age. In 
the second place, Indians sometimes received free health services from 



the government, which were not available to nonJndians. In the third 
place, they received special government protection against the loss of 
their lands. In the fourth place, they had access to government credit 
facilities, which were denied to their white neighbors. In the fifth place, 
they had a corps of government employees available to render them spe- 
cial guidance in farming and in other vocational efforts, or, as critics of 
the system prefer to put it, a bureaucracy established to impair their posi- 
tion as free and self-reliant Americans. I think it fortunate that the 
assimilationists did not succeed in wiping out all these peculiarities. For 
the fact is that in the last 20 years the processes of acculturation have 
worked the other way. Each of these Indian peculiarities has been ex- 
tended to the Indians' neighbors. Non-Indians today, as well as Indians, 
receive food supplies or other forms of public assistance in their old age, 
receive an increasing measure of free health services from the government, 
have access to expanding sources of government credit. An increasing 
number of white Americans have obtained land, or security on land they 
already own, from the operations of the Federal Government under the 
Bankhead-Jones Act, the Home Owners Loan Corporation Act, the Farm 
Credit Administration Act, and other laws of that type, or from liberalized 
state homestead laws. Even the vast bureaucracy, or whatever it is that 
public servants are called by the critics of any administration, has been 
extended to the rest of our population. I think that, on the whole, Amer- 
ican life is richer and more secure today because, instead of wiping out 
the federal services that were once peculiar to Indians, we have extended 
them to the rest of our population. 

Across the span of our national history this problem of assimilation 
and acculturation is not a new one. For many decades whites regarded 
the peculiar Indian custom of burning certain weeds and inhaling the 
smoke with peculiar horror, even as a proof of the depths to which wor- 
ship of the devil had degraded the native inhabitants of this land. But 
eventually the rest of the world revised its judgment and adopted the 
Indian's tobacco, pipe, cigars, and cigarettes. 2 So it has been with many 
other peculiarities of Indian life. Only dire starvation compelled the 
white colonists to accept that great contribution of the Indian to the 
world's food supply, Indian corn, and all that goes with its culture, in- 
cluding the planting of pumpkins in corn fields, the munching of pop- 
corn, and breakfasts of flapjacks and maple syrup north of the Rio Grande 

2. For references to various prohibitions and denunciations against the use of 
tobacco by high medical, political, and spiritual authorities, including Pope Innocent 
X, King James I, and Jahangir, Mogul Emperor of Hindustan, see Arturo Castiglioni, 
"The Introduction of Tobacco in Europe," Ciba Symposia, 4 (1943), 1436. 



and tortillas south. Opposition to the potato persisted in Europe for more 
than two centuries, during which time it was argued by physicians, 
agronomists, and theologians that the potato (a) was poisonous, (b) was 
the cause of many diseases, (c) permanently destroyed the fertility of the 
soil in which it grew, and (d) was not mentioned in the Bible. This op- 
position was broken down only by such extreme measures as the royal 
threat to chop off the ears and noses of Prussians who refused to plant 
and eat potatoes, the organization of a corps of "Potato Missionaries" in 
other parts of Germany, and the more subtle French method of Louis 
XVI and Parmentier of growing large fields of potatoes in public places 
and strictly forbidding passers-by to take or taste this forbidden fruit. 3 
Only 70 years ago most white authorities considered the tomato to be 
poisonous to human beings and this was one more evidence that the 
Indians who had created this noblest of vegetables were mentally queer. 
Seventy years ago, most white people thought that the Indian custom of 
exposing large amounts of the human epidermis to the sun's rays was 
either unhealthful or downright sinful. And many medicines which the 
Indian medicine men had discovered or invented witch hazel, cascara 
sagrada, oil of wintergreen (of which aspirin is a derivative), cocaine, 
quinine, and the rest had to meet suspicion and hostility before they 
won professional and public acceptance. 4 

I mention these things merely as instances of the widespread and deep- 
rooted human attitude that regards the strange and unfamiliar as nec- 
essarily inferior to the accepted and commonplace. My plea is that we 
who are the heirs of all the world's civilizations and cultures should rise 
above this weakness and, instead of trying to remake all Indians in our 
own image, that we seek to guarantee to the Indian in practice the realm 
of freedom which is his under the law. That realm of freedom will in- 
clude perhaps, practices and institutions which some of us may despise; 
but let us not forget that many of the qualities of Indian life which were 
once despised have contributed to the richness of our American life to- 
day. It is because we as a nation have been tolerant of many differences, 
many races, and many ways of life, that we have been able to develop 
the strongest, the wealthiest, and the freest nation on the face of the 
earth. In England the Lord Chancellor is the keeper of the King's con- 
science; in this democracy of ours where the people is King, the King's 
conscience is kept by men and women who dare to be critical of wrongs 

3. See W. E. Safford, "The Potato of Romance and Reality/' Journal of Heredity, 
16 (1925). 113* !75 217, 319-23. 

4. See E. E. Edwards, American Indian Contributions to Civilization (U.S. Dept. of 
Agric., 1934), p. 8. 



in high places. Theirs is the sacred trust of reminding the King, in the 
days of his strength and power, of the obligations he owes to the weakest 
of his subjects, that we may not succumb to the poisons of pride and 
intolerance which have destroyed powerful states and mighty kings be- 
fore us. 


Indian Claims 

A CERTAIN rich man was enjoying a banquet. As he sat at the groaning 
table he could see outside the window, at the door of his home, an old 
woman, half starved, weeping. His heart was touched with pity. He called 
a servant to him and said: "That old woman out there is breaking my 
heart. Go out and chase her away.'* 

Something of the same attitude has characterized our attitude towards 
the Indians on our national doorstep. Where we have not physically 
called on our public servants to chase them away from the doorstep, we 
have often disposed of them spiritually by denying their existence as a 
people, or by taking refuge in the Myth of the Vanishing Indian, or by 
blaming our grandfathers for the wrongs that we commit. In this way 
we have often assured ourselves that our national sins were of purely 
antiquarian significance. Just a few weeks ago the Supreme Court did 
this in the Northwestern Shoshone case. After denouncing the injustices 
done to a little band of Shoshone Indians, it denied them the right to 
recover for these injustices under a special jurisdictional act passed by 
Congress in 1929. And chief among the reasons advanced by the Justices 
in defending a decision that shocked the national conscience * was the 
myth that whatever wrongs had been committed against these Indians 
were ancient wrongs committed by our forefathers in the distant past 
against remote ancestors of the present claimants. 

The fact of the matter, in this particular case, was that the wrongs com- 

i. Following the decision of the Supreme Court on March 12, 1945, requests for 
a rehearing of the case were filed by the Senate and House Committees on Indian 
Affairs, the Attorney General of the State of Utah, the Attorney General of the State 
of Idaho, Judge Manley O. Hudson of the Permanent Court of International Justice, 
the Department of the Interior, the National Congress of American Indians, and the 
American Civil Liberties Union. Editorial comment on the opinion, uniformly un- 
favorable, appeared in many periodicals throughout the country. The request for 
rehearing was denied without opinion. The original opinion of the Court was a 5 to 
4 decision from which Justices Roberts, Frankfurter, Douglas, and Murphy dissented. 

Published in The American Indian, 1945. 



plained of began, so far as the evidence in the record showed, about 1907 
and are still being committed. What our forefathers did in 1863 and 1865 
was the only fair and decent thing that the record in the case showed: that 
was to deal with these Indians as we deal with other human beings, rec- 
ognizing their land claims and paying them for right-of-way that we 
needed and that they were willing to cede. 

The Myth of Moral Progress, which enables us to attribute our current 
exploitations to our forefathers while continuing to draw a profit there- 
from, the Myth of the Vanishing Indian (actually the Indians are today 
the most rapidly increasing part of our population), and the Myth of 
Indian Nomadism, have all combined in the case of the Northwestern 
Shoshones, as in many other situations, to obscure the realities of a prob- 
lem which has a very serious contemporary relevance. 

Indian claims are, by and large, the backwash of a great national ex- 
periment in dictatorship and racial extermination. This episode in our 
national history reached its florescence in the period from the close of 
the Civil War to the First World War. It is the wrongs committed or at 
least initiated by our public servants in that period that give rise to most 
of the claims that we are trying to redress today. I think that the attitude 
which gave rise to these claims is pretty well expressed by General Francis 
A. Walker, the noted statistician and economist, who was appointed Com- 
missioner of Indian Affairs in 1871 by General Grant, presumably in 
order to provide a salary for him while he continued to work on the 1870 
census after Congress had refused to continue appropriations for his 
salary in conducting that census. Commissioner Walker declared: "There 
is no question of national dignity, be it remembered, involved in the 
treatment of savages by a civilized power. With wild men as with wild 
beasts the question whether in a given situation one shall fight, coax, or 
run is a question merely of what is easiest and safest." 

These views are developed with particular vehemence in the 1890 cen- 
sus, which includes a special report on Indians and uses a good deal of 
pseudo-scientific racist lingo to justify the policy of exterminating the 
Indian race, the kind of language that has become familiar to any of us 
who have read Nazi racist literature in recent years. The Indians, we are 
solemnly told by the 1890 census, are "the embodiment of cruelty." They 
also have an "insatiable greed for money." The Indians "as a class are 
egotists." They are also "pigeon-toed." They are born to a peculiar and 
irrational sort of logic. The evidence of this peculiar logic, incidentally, 
is very instructive. According to the 1890 census report an Indian chief 
by the name of Wabasha was holding a scalp dance and was reproached 
by Bishop Whipple. The Indian Chief commented: 



White man go to war with his own brother in the same country; 
kill more men than Wabasha can count in all his life. Great Spirit 
smiles; says, "Good white man; he has my book; I love him very 
much; I have a good place for him by and by." The Indian is a wild 
man; he has no Great Spirit book; he kills one man; has a scalp 
dance; Great Spirit is mad, and says, ''Bad Indian; I will put him in 
a bad place by and by." Wabasha don't believe it. 

That, according to the compilers of the 1890 census, proves that the In- 
dians are not rational. 

The conclusion of this pseudo-scientific nonsense, as embalmed in the 
1890 census, is given in these words: "Such has been his life, such the 
result, that if the entire remaining Indians were instantly and completely 
wiped from the face of the earth, they would leave no monuments, no 
buildings, no written language save one, no literature, no inventions, 
nothing in the arts or sciences, and absolutely nothing for the benefit of 
mankind." (p. 57) 

Fortunately the views of practical administrators like General Walker 
did not carry very much weight with Congress or the Courts, and the 
result has been that while a large part of our Indian population and a 
larger part of our Indian property and culture disappeared in the closing 
decades of the igth Century, the body of Indian rights written into our 
basic law survived to serve as a rallying ground for a great rebirth of In- 
dian life in our own days. And I should like to emphasize the fact that 
the problem of Indian claims cannot be understood at all if we look 
only at the wrongs that have been committed against Indians. Wrongs 
never create rights. It is only because at the same time that we committed 
these wrongs we recognized and affirmed a higher standard of dealing 
than we followed that we have a problem of Indian claims today. 

Let me trace, then, in brief outline the background of rights and 
wrongs against which the problem of Indian claims must be viewed. 


The first point to note in tracing the background of the Indian claims 
problem is that long before any white man landed on these shores the 
Indians were making use of the resources of the entire country, within 
the limits of a Stone Age technology. The country was pretty well carved 
up into areas exclusively claimed by the various Indian Tribes. There 
may have been some areas only occasionally or sporadically occupied, 
and there must have been boundary disputes, as there are today among 



civilized nations, but on the whole each Indian group knew its own 
territory and the life of each of its members depended upon an exact 
knowledge of the boundaries and resources of a particular area. Some 
years ago I had occasion to investigate the aboriginal boundaries of the 
Walapai Indians. After getting the best information I could from the 
older Walapai Indians themselves, I undertook to check this with rep- 
resentatives of all their traditional enemies, the Paiute, Mohave, Yavapai 
and various others. In substantially every case I found precise agreement 
as to the location of these aboriginal boundary lines. Where an old 
Walapai Indian told me that in his childhood his uncle had told him 
that if he crossed a certain creek he would be killed by the Yavapai In- 
dians I would obtain from an old Yavapai Indian, who was quite un- 
familiar with my Walapai testimony, a statement that some ancestor of 
his had taken him to the same creek in his childhood and told him that 
if he crossed to the other side it would be very dangerous for him because 
the Walapai would probably kill him. 

Now it is true that in many parts of the country Indians had to do a 
good deal of traveling to wrest a living out of an unfriendly environ- 
ment. And white travelers, using Indian trails and meeting Indians on 
these trails, long ago developed the Myth of the Nomadic Homeless In- 
dian, which is commonly accepted as a fact even by judges who are 
trained in the difficult art of reserving judgment in the absence of evi- 
dence, outside the field of anthropology. Thus in the recent Northwestern 
Shoshone case, two of the most progressive judges of the Supreme Court, 
both Easterners, held that certain Shoshone Indians could not possibly 
have "owned" the lands referred to as theirs in a treaty because a few 
hundred Indians were "roaming" over millions of acres. When I checked 
the actual figures on this I found that the number of white people who 
now make their living in the area defined by the treaty is somewhat less 
than the number of Indians who once subsisted within its limits, and 
that the predominant use of this land made today by the white populace 
is for seasonal grazing of approximately six months' duration or less. 
What this means is that there are parts of our country, particularly in 
the western mountain states, which are not suitable for year-round living 
because the higher reaches are covered with deep snow in the winter 
months and the lower areas are arid in the summer months. Effective use 
of these areas must therefore be seasonal. That does not mean that In- 
dians did not have well recognized homes and villages for the different 
seasons of the year. It does not mean that they had no property rights. 
As one aged Havasupai Indian once explained to me, he had a winter 
home and a summer home "all same rich white man." 



Of course primitive concepts of real property cannot be equated with 
some of the forms of land ownership that we have in modern industrial 
society, but the basic idea of exclusive possession was an idea that had 
been thoroughly developed in the Indian cultures, and Father Cooper of 
Catholic University has prepared a very interesting map showing the dif- 
ferent forms of land tenure prevailing in different parts of North America 
and tracing the relationships between the forms of land tenure and the 
types of economy, hunting, fishing, and agriculture, in which they appear. 
This, then, was the background on which the story of white land acquisi- 
tion must be told. 


Notwithstanding the popular myth that our forefathers ruthlessly dis- 
possessed the Indian and refused to recognize his prior rights to the lands 
of North America, the fact is that through most of North America and 
particularly throughout the continental United States, the validity of 
aboriginal titles has been pretty consistently recognized since 1532. This 
is a rather remarkable fact in the history of contacts between races, and 
but for this fact we would have no problem of Indian claims. We have 
no problem of Negro claims although the Negroes of this country have 
probably suffered in a measure far exceeding any wrongs ever inflicted 
on our Indian population. There is no problem of Negro claims for the 
uncompensated labors of two and one-half centuries of slavery, because 
the Negroes had no legal rights during the period of slavery. The fact that 
there is an Indian claims problem today, while it points to the fact that 
wrongs and injuries have been committed against Indians, points also to 
the equally important fact that Indians have always occupied a high and 
protected position in the law of the land. 

This circumstance we owe largely to the vision of a great Spanish theo- 
logian, Francisco de Vitoria, a professor of moral theology at the Univer- 
sity of Salamanca, who, in the year 1532, was asked to advise the King 
of Spain on the nature of that sovereign's rights in the New World. 
Braving the risk of royal displeasure and the certainty of offending all 
the robber barons who were pillaging the New World, this university 
professor advanced the view that discovery of the Indians by the Spaniards 
did not give the Spaniards any right to enslave the Indians or confiscate 
their possessions any more than did the discovery of the Spaniards by 
the Indians give reciprocal rights of confiscation and enslavement to the 
Indians. Nor, Professor Vitoria held, did the religion or lack of religion 
of the Indians have any bearing upon their right to their lands or their 



liberty. These were things which belonged to human beings as human 
beings, not by virtue of their religious adherence or political allegiance. 
These views of Vitoria, advanced as a guide to relations between Catholic 
Spaniards and pagan Indians, were equally applicable to relations with 
Mohammedan Arabs or Protestant Hollanders and, picked up and am- 
plified by Grotius and Vattel, the ideas expressed in Vitoria's opinion on 
Indian affairs became the basis of modern international law. The high 
principles thus laid down have, of course, often been violated by Span- 
iards and by those who came after in the settlement of North America, 
but on the whole these principles have showed a remarkable vitality. 2 

Perhaps it is only fair to say that the vitality of these principles re- 
flected the courage and love of freedom of our native population. The 
Indians of this country never accepted any relationship with any white 
man's government that did not recognize their right to their freedom and 
their land. It has been estimated that in the last years of our Indian wars 
it cost the United States on an average four million dollars to kill an 
Indian. 3 It was cheaper to deal in friendly fashion with Indians for the 
purpose of acquiring such lands as the white man needed and as the 
Indians were willing to sell when the acquisition of white technologies 
made it possible for them to wrest a living from a smaller area. 

The process of white land acquisition is one that has been largely 
misunderstood and misrepresented. I should be the last to deny that 
wrongs have been committed in the course of this acquisition of our 
public domain. But the fact remains that of all the public domain ac- 
quired by the United States, approximately 95% was purchased through 
formal treaty or agreement with Indian tribes and only 5% was acquired 
in other ways. I have no exact figures on the total amounts paid, but my 
best guess would be that the sum runs somewhere between 500 million 
and i billion dollars. Certainly we drove some shrewd Yankee bargains, 
but on the whole the Indians did rather better than Napoleon or the 
Czar of Russia or the Republic of Mexico in their land transactions with 
the United States. 


The purchase of the land of the United States from the Indians was, 
I suppose, the largest real estate deal recorded in the history of the world. 

2. See F. S. Cohen, "The Spanish Origin of Indian Rights in the Law of the United 
States" [above, p. 230]. 

3. Cf. opinion of Chief Judge Nott of the Court of Claims in Scott v. United States 
and Apache Indians, 33 Ct. Cls. 486 (1898). 



It would be miraculous if such a series of land transactions, stretching out 
over more than a century and a half and involving an expenditure of 
several hundred million dollars did not develop the same sort of mis- 
understandings and legal difficulties that would be developed in com- 
parable transactions among white men. Mistakes were made in tracing 
boundaries. We sometimes bought land from a tribe that did not own 
it and overlooked the tribe that had a better right. Sometimes our agents 
were faithless to their trust, and the representatives of the Indian tribes 
faithless to theirs. Other times the money that was to be given to the In- 
dians in the form of merchandise and services was diverted to other 
unauthorized purposes. Or, we promised to pay the Indians for the land 
they sold us if, as, and when we received payments from individual home- 
steaders, and then the homesteaders never came or we put the land into 
national parks so that neither we nor the Indians could collect any home- 
stead fees. 

If any of these difficulties arose in the course of land transactions be- 
tween private citizens, resort to the courts would be the natural channel 
of redress. The United States, however, as a sovereign, is exempt from 
suit except in so far as it permits injured parties to bring suit. And this 
is where the difficulties begin in our problem of Indian claims. On 
March 3, 1863, Congress enacted a statute which declares that the jurisdic- 
tion of the Court of Claims, which is the court that ordinarily handles 
claims against the United States, "shall not extend to any claim against 
the Government not pending therein on December i, 1862, growing out 
of, or dependent on, any treaty stipulation entered into with foreign na- 
tions or with the Indian tribes." Whatever justification there may have 
been for discriminating against the contracts we had made with the 
original owners of the country in giving the Court of Claims general 
jurisdiction over contract claims against the government, the effect of 
this discrimination has been to inject gross delays into our judicial settle- 
ments of treaty claims. 


For many years Congress has been enacting special statutes allowing par- 
ticular Indian tribes to bring suit in the Court of Claims for injuries 
arising under various treaties and agreements. As of February, 1940, Con- 
gress had passed special jurisdictional acts under which approximately 
175 cases have already been litigated or are in the course of litigation. 
Out of approximately 100 that went to judgment, 26 resulted in Indian 
recoveries, and these recoveries amounted to slightly more than $30,- 



000,000. Since 1940 this figure has been increased by a little over $7,000,- 
ooo. My guess would be that the cost of this litigation to the United States 
has been considerably in excess of these figures. 

The present procedure, while it results in substantial justice in a good 
many cases, involves a very high administrative outlay. There are three 
factors particularly that contribute to this high outlay. One is the amount 
of duplication in the investigative work that is involved in this litigation. 
In the first instance, the matter is investigated by Indian tribal attorneys, 
and the cost of this investigation naturally comes out of the ultimate 
recovery, if any. Most Indian tribal attorneys never do get that expendi- 
ture back. Then, when a bill has been drafted, the Interior Department 
and the Department of Justice conduct extensive investigations to deter- 
mine whether or not the bill has merit and should be favorably reported. 
The Congressional Committees do the same thing. This may happen at 
several successive sessions of Congress. If the Indians are lucky enough 
to get their bill passed, then the whole process of investigation begins all 
over again in the Court of Claims. This investigation must be limited to 
the particular case. A large part of this investigation generally goes to 
the question of the disposition made of various "gratuity" appropriations, 
which are commonly deducted from Indian judgments. The same ap- 
propriations and the same account books must be scrutinized again and 
again for each separate case. This involves a considerable delay, during 
which time interest charges sometimes run against the United States. 
Finally, if a judgment is rendered and the judgment is unfavorable to 
the Indians, as happens in 3 out of 4 cases, the nature of the judgment 
is commonly such as to pass the buck back to Congress by pointing to 
some technical defect in the jurisdictional act which stands in the way 
of recovery. Then the Indians have to go back to Congress and start the 
whole process all over again. The result is that what should be an ex- 
peditious solution of a dispute, vindicating the just claims of the Indians 
and the honor of the United States, often turns into a protracted and 
fruitless expenditure of time, effort, and money. The problem we face is 
whether this process of redressing Indian grievances cannot be carried 
out in a more efficient and economical way. 


For more than a dozen years now, friends of the Indian have been urging 
a streamlined administrative solution of the Indian claims problem 
through the establishment of a special commission to pass on Indian 
claims. This proposal was supported by the platforms of both the Repub- 



lican and the Democratic Party in the Presidential election year of 1940 
and for a time it looked as if the necessary legislation to establish such 
a commission would be passed by both Houses. But the war intervened 
to prevent the enactment of legislation that might result in substantial 
payments for non-war purposes. Now that the war is in its last stages, 
prospects for the enactment of this legislation are becoming brighter. 
Two substantially similar bills (H.R. 1198 and H.R. 1341) have been in- 
troduced in the House to set up an Indian Claims Commission and I 
am reasonably confident that this proposed legislation will be favorably 
reported by the House Committee on Indian Affairs in the very near 
future. Whether it will pass will depend, of course, very largely on pop- 
ular reactions to the problem. Briefly, the proposed legislation proposes 
to eliminate the costs of duplicated effort, to cut down the costs of delayed 
decision, and to eliminate relitigation by centralizing in a single com- 
mission complete responsibility to dispose finally of all Indian claims. 
There are at least three points which are essential in any legislation 
of this character. One is that the legislation be comprehensive enough to 
include all Indian claims, legal, equitable and moral. A second and cor- 
relative point is that the proposed Commission ought not to operate on a 
purely legal level as does the Court of Claims. It ought to operate as an 
administrative agency empowered to reach a just solution within broad 
limits established by law. Finally, the Commission ought to be set up 
with such powers and appropriations that it can really do a complete 
job of investigating the entire field of Indian claims, even for those tribes 
which may be too poor to hire their own lawyers, and bring in within 
a reasonable period of time a report which will conclude once and for 
all this chapter of our national history.* 

* [Ed. note: Such a commission was set up in 1946 under the Indian Claims Com- 
mission Act (60 Stat. 1049). Many claims have been filed and some have been adjudi- 
cated after full investigation and hearing.] 

Original Indian Title 


Recent decisions of the Supreme Court recognizing the validity of original 
Indian title l make the existence and extent of such aboriginal owner- 
ship a relevant issue in title examinations whenever a chain of title is 
traced back to a federal grant or patent. Grantees who have relied on the 
Great Seal of a federal department as assuring the validity of land grant 
titles have not infrequently discovered to their sorrow the truth of the 
old French saying, "Meme la plus belle fille du monde ne peut donner 
que ce qu'elle a." Not even the Federal Government can grant what it 
does not have. The nature of Indian title and its extinguishment thus be- 
comes, in those states that have been carved out of the federal public 
domain, a matter of concern to real property lawyers generally. 

The leading Supreme Court case that establishes the invalidity of 
federal grants that ignore Indian title is the case of Moose Dung 2 (such 
being the polite English translation of Chief Monsimoh's Chippewa 
name). Here a federal lease which appeared on its face to be perfectly 
valid, and which had been specially confirmed by a joint resolution of 
Congress, 3 was held invalid by the Supreme Court, on the ground that 

1. United States as Guardian of the Hualpai Indians v. Santa Fe Pacific RJR.., 
(1941) 314 U.S. 339; United States v. Alcea Band of Tillamooks, (1946) 329 U.S. 40. 

2. Jones v. Meehan, (1899) 175 U.S. i. 

3. Joint Resolution of August 4, 1894, 28 Stat. 1018. 

Published in Minnesota Law Review, 1947. In 1947 Felix Cohen set forth this 
analysis of the trend of Supreme Court decisions regarding original Indian title. 
Following publication of the article came the Supreme Court's second Alcea decision 
(341 U.S. 48 [1951]), which appeared to break with the past views of the Court on 
original Indian title. The second Alcea decision was rendered in the form of a brief 
per curiam opinion. It was followed by Tee-Hit-Ton Indians v. U.S. (348 U.S. 272 
t^SS])* which rejected the thesis of the article that original Indian title vested a 
constitutionally protected right in Indians. This article can be looked upon as an 
a priori dissenting view on this issue. The dissent by Justices Warren, Frankfurter, 
and Douglas did not reach the constitutional question. 


neither the Secretary of the Interior nor the Congress of the United States 
had constitutional power to disregard Indian property rights. The right 
to dispose of this property, the Court held, was vested in the Indian 
owner, Chief Moose Dung the Younger. By tribal custom he was entitled 
to the land that had been promised 4 to his father, Chief Moose Dung 
the Elder. The Court accordingly held that Jones, the lessee under a lease 
executed and approved by the Department of the Interior, 5 could be 
evicted by the Meehans, who had relied on an unapproved lease, allowing 
the use of land for lumbering purposes, granted by the Indian owner, the 
younger Moose Dung, The Supreme Court summed up its decision in 
these words: 

The title to the strip of land in controversy, having been granted 
by the United States to the elder chief Moose Dung by the treaty 
itself, and having descended, upon his death, by the laws, customs 
and usages of the tribe, to his eldest son and successor as chief, Moose 
Dung the younger, passed by the lease executed by the latter in 1891 
to the plaintiffs for the term of that lease; and their rights under that 
lease could not be divested by any subsequent action of the lessor, or 
of Congress, or of the Executive Departments, (p. 32) 

Standing by itself, the decision in Jones v. Meehan might be narrowly 
interpreted as applying only where Indian land rights were assured and 
recognized by treaty. But the case of Cramer v. United States, 6 decided 
24 years later, made it plain that the Supreme Court would not so limit 
the rule of respect for Indian title. For in the Cramer case the Indian 
title had never been recognized by treaty, act of Congress, or Executive 
order. What was involved was an area claimed by Indians by right of 
occupancy initiated before 1859. Yet the Supreme Court held that the 
Indian right of occupancy, even though it had not been formally rec- 
ognized, was not terminated by a subsequent statutory grant. In this case 
the Court did not face the constitutional question of whether a valid 

4. By Section 9 of the Treaty of Oct. 2, 1863, 13 Stat. 667, 671. 

5. The Interior lease of 1894 had the approval of all the descendants of Moose 
Dung the Elder, but the Court considered this irrelevant, on the ground that the 
Interior Department had no authority to disregard tribal customs on questions of 
inheritance and that, according to Chippewa custom, the eldest son took the land and 
had full power to dispose of its use. The Court quoted with approval (at p. 31) the 
comment of Justice Brewer (then Circuit Judge) in a somewhat similar case, that 
the Secretary of the Interior "had no judicial power to adjudge a forfeiture, to decide 
questions of inheritance, or to divest the owner of his title without his knowledge or 
consent." Richardville v. Thorp, (C.C,, D. Kans., 1866) 28 Fed. 52, 53. 

6. (1923) 261 TLS. 219. 


grant divesting Indian title could have been made to the railroad, since 
it was able to put upon the Congressional grant a narrow construction 
that saved the land rights of the Indians. The railroad land grant statute 7 
in the Cramer case had excepted from the scope of the grant all lands 
"reserved ... or otherwise disposed of." The Department of the In- 
terior, in 1904, issued patents to the Central Pacific Railway Company, 
on the assumption that there was no reservation or other encumbrance 
to prevent the passage of full title to the grantee. Yet the Supreme Court, 
in 1923, held that this departmental action disregarding Indian rights 
was erroneous. "The fact that such [Indian] right of occupancy finds no 
recognition in any statute or other formal governmental action is not 
conclusive. The right, under the circumstances here disclosed, flows from 
a settled governmental policy/' (p. 229) 

The policy on which the Supreme Court based its decision in the 
Cramer case it spelled out in these words: 

Unquestionably it has been the policy of the Federal Government 
from the beginning to respect the Indian right of occupancy, which 
could only be interfered with or determined by the United States. 
Beecher v. Wetherby, 95 U.S. 517, 525; Minnesota v. Hitchcock, 185 
U.S. 373, 385. It is true that this policy has had in view the original 
nomadic tribal occupancy, but it is likewise true that in its essential 
spirit it applies to individual Indian occupancy as well; and the 
reasons for maintaining it in the latter case would seem to be no less 
cogent, since such occupancy being of a fixed character lends support 
to another well understood policy, namely, that of inducing the In- 
dian to forsake his wandering habits and adopt those of civilized life. 
That such individual occupancy is entitled to protection finds strong 
support in various rulings of the Interior Department, to which in 
land matters this Court has always given much weight. Midway Co. 
v. Eaton, 183 U.S. 602, 609; Hastings fc Dakota R.R. Co. v. Whitney, 
132 U.S. 357, 366. That department has exercised its authority by 
issuing instructions from time to time to its local officers to protect 
the holdings of non-reservation Indians against the efforts of white 
men to dispossess them. See 3 L.D. 371; 6 L.D. 341; 32 L.D. 382, In 
Poisal v. Fitzgerald, 15 L.D. 19, the right of occupancy of an indi- 
vidual Indian was upheld as against an attempted homestead entry 
by a white man. In State of Wisconsin, 19 L.D. 518, there had been 
granted to the State certain swamp lands within an Indian reserva- 
tion, but the right of Indian occupancy was upheld, although the 

7. Act of July 25, 1866, 14 Stat. 239. 



grant in terms was not subject thereto. In Ma-Gee-See v. Johnson, 
30 L.D. 125, Johnson had made an entry under Par. 2289, Rev. Stats., 
which applied to "unappropriated public lands/' It appeared that 
at the time of the entry and for some time thereafter the land had 
been in the possession and use of the plaintiff, an Indian. It was 
held that under the circumstances the land was not unappropriated 
within the meaning of the statute, and therefore not open to entry. 
In Schumacher v. State of Washington, 33 L.D. 454, 456, certain lands 
claimed by the State under a school grant, were occupied and had 
been improved by an Indian living apart from his tribe, but ap- 
plication for allotment had not been made until after the State had 
sold the land. It was held that the grant to the State did not attach 
under the provision excepting lands "otherwise disposed of by or 
under authority of an act of Congress." Secretary Hitchcock, in de- 
ciding the case, said: 

"It is true that the Indian did not give notice of his intention 
to apply for an allotment of this land until after the State had 
made disposal thereof, but the purchaser at such sale was bound 
to take notice of the actual possession of the land by the Indian 
if, as alleged, he was openly and notoriously in possession thereof 
at and prior to the alleged sale, and that the act did not limit the 
time within which application for allotment should be made." 
Congress itself, in apparent recognition of possible individual In- 
dian possession, has in several of the state enabling acts required the 
incoming State to disclaim all right and title to lands "owned or 
held by any Indian or Indian tribes." See 25 Stat. 676, c 180, Par. 
4, par. 2; 28 Stat. 107, c. 138, Par. 3, par. 2. 

The action of these individual Indians in abandoning their no- 
madic habits and attaching themselves to a definite locality, reclaim- 
ing, cultivating and improving the soil and establishing fixed homes 
thereon was in harmony with the well understood desire of the Gov- 
ernment which we have mentioned. To hold that by so doing they 
acquire no possessory rights to which the Government would accord 
protection, would be contrary to the whole spirit of the traditional 
American policy toward these dependent wards of the nation. 

As against these general indications of a policy to respect Indian oc- 
cupancy rights, the defendant Cramer, the railroad's assignee, argued that 
in this particular case the Interior Department had concluded that the 
Indians had no rights to the land, had recognized the title o the rail- 
road grantee, and had in fact negotiated a lease of the land from the 
defendant. This argument the Court rejected, with the comment: 



Neither is the Government estopped from maintaining this suit by 
reason of any act or declaration of its officers or agents. Since these 
Indians with the implied consent of the Government had acquired 
such rights of occupancy as entitled them to retain possession as 
against the defendants, no officer or agent of the Government had 
authority to deal with the land upon any other theory. The ac- 
ceptance of leases for the land from the defendant company by agents 
of the Government was, under the circumstances, unauthorized and 
could not bind the Government; much less could it deprive the In- 
dians of their rights, (p. 234) 

The lower court was accordingly instructed "to amend its decree so as 
to cancel the patent in respect of the lands possessed by the Indians." 
(p. 236) 

Such was the state of the law when, in 1925, the Department of the 
Interior sought to patent half of the Hualapai Indian Reservation in 
Arizona to the Santa Fe Pacific Railway. The theory of this transaction 
was that when the reservation was established in 1883 half of the land, 
i.e., the odd-numbered sections, already belonged to the railroad grantee 
under the act of July 27, 1866 (14 Stat. 292). Congress implicitly ratified 
this view of the situation when it authorized the Secretary of the Interior 
to arrange an exchange of Indian and railroad lands within the reserva- 
tion which would simplify the boundaries between railroad and Indian 
lands. 8 But when the Interior Department tried to carry out the mandate 
of Congress, the Indians and their friends 9 objected on the ground that 
the railroad, rightfully, had no lands to exchange, since aboriginal title 
long antedated the railroad grant. After some years of protests, charges, 
counter-charges, and administrative opinions rejecting the Indians' con- 
tentions, 10 a suit was instituted in 1937 to vindicate the possessory rights 
of the Indians. (Here, as in the Cramer case, there was no treaty or act of 
Congress confirming or defining the Indians' rights). When the case 
reached the Supreme Court in 1941, after two decisions against the In- 
dians in the lower courts, the Attorney General of Arizona filed a brief 
urging that "Any suggestion by this Court that Indian tribes might have 
rights in property enforcible in a court of law by the mere fact of oc- 

8. Act of February 20, 1925, 43 Stat. 954. 

9. See letters and resolutions of Indian Rights Association and other organizations 
printed in Walapai Papers, (1936) Sen. Doc. No. 273, 74th Cong., 2d sess., pp. 251, 

10. See Opinion of E. C. Finney, Solicitor of the Department of the Interior, dated 
September 16, 1931, and letter of Assistant Attorney General Richardson, dated Nov. 
12, 1931, printed in Walapai Papers, supra note 9, pp. 319-27. 



cupancy would at least cast a cloud upon the title to the major portion of 
Arizona/* n 

Despite this warning, the Supreme Court unanimously decided the 
issue in favor of the Indians, holding that Indian occupancy, even though 
unrecognized by treaty or act of Congress, established property rights 
valid against non-Indian grantees such as the defendant railroad. The 
Court did not have to face the constitutional issue which it decided in 
Jones v. Meehan, because here, as in the Cramer case, there was language 
in the Congressional granting act which could be interpreted as protect- 
ing and safeguarding Indian rights. 

While the Court did not therefore pass on the validity of any legisla- 
tion, it did necessarily pass on the validity of departmental action pur- 
porting to recognize railroad rights to the exclusion of Indian rights. 
With respect to this, the unanimous opinion of the Court declared: "Such 
statements by the Secretary of the Interior as that 'title to the odd- 
numbered sections' was in the respondent [railroad] do not estop the 
United States from maintaining this suit. For they could not deprive the 
Indians of their rights any more than could the unauthorized leases in 
Cramer v. United States, supra." (p. 355) 

At the same time the Court rejected various other contentions ad- 
vanced by the railroad, such as the argument that Indian land rights had 
been wiped out by the Mexican cession treaty 12 or by acts of Mexican 
or Spanish sovereignty, or by a long course of Congressional statutes open- 
ing western lands to settlement. The upshot of the case was that on March 
13, 1947, the trial court entered a decree, consented to by all parties, 
establishing Indian title to some 509,000 acres of land which two Depart- 
ments of the Government had promised to the defendant railroad. Not- 
withstanding the fears expressed by the Attorney General of Arizona, 
there has been no substantial decline in Arizona realty values as a result 
of the decision. 

The fears expressed by the Attorney General of Arizona were not, on 
the surface, unreasonable. Concern lest arguments in favor of the In- 
dians might result in imposing vast liabilities on the Federal Govern- 
ment led the Attorney General of the United States in 1941, to decline to 
argue the case, so that the Indian side of the case had to be presented by 
the Solicitor of the Department of the Interior. 

A similar fear was recently expressed by the three justices of the Su- 
preme Court who dissented from the decision of the Court in the Alcea 
case 1S on the ground that this decision, awarding compensation for a 

11. Brief for the State of Arizona, et al., p. 2. 

12. Treaty of Guadalupe Hidalgo, February 2, 1848, 9 Stat. 922. 

13. Cited supra note i. 


taking of original Indian title, would set a precedent compelling the 
United States to pay other tribes for other areas so taken, which "must 
be large" (p. 56). 

The fear that recognizing Indian title, or paying Indians for land, 
would unsettle land titles everywhere and threaten the Federal Govern- 
ment with bankruptcy would be well grounded if there were any factual 
basis for the current legend of how we acquired the United States from 
the Indians. If, as the cases hold, federal grants are normally subject to 
outstanding Indian titles, and if, over extensive areas where such grants 
have been made, Indian title has in fact never been lawfully extinguished, 
then a vast number of titles must today be subject to outstanding Indian 
possessory rights. The fact, however, is that except for a few tracts of 
land in the Southwest, practically all of the public domain of the con- 
tinental United States (excluding Alaska) has been purchased from the 
Indians. It was only because the Hualapai case fell within an area where 
no Indian land cessions had been effected that the railroad title was held 
invalid. This means, of course, that the titles of railroads and other 
grantees of the Federal Government elsewhere in the United States may 
likewise depend upon whether the Federal Government took the precau- 
tion of settling with Indian land owners before disposing of their land. 

Fortunately for the security of American real estate titles, the business 
of securing cessions of Indian titles has been, on the whole, conscientiously 
pursued by the Federal Government, as long as there has been a Federal 
Government. The notion that America was stolen from the Indians is 
one of the myths by which we Americans are prone to hide our real virtues 
and make our idealism look as hard-boiled as possible. We are probably 
the one great nation in the world that has consistently sought to deal 
with an aboriginal population on fair and equitable terms. We have not 
always succeeded in this effort but our deviations have not been typical. 

It is, in fact, difficult to understand the decisions on Indian title or to 
appreciate their scope and their limitations if one views the history of 
American land settlement as a history of wholesale robbery. The basic 
historic facts are worth rehearsing before we attempt analysis of the cases 
dealing with the character and scope of original Indian title. 


Every American schoolboy is taught to believe that the lands of the 
United States were acquired by purchase or treaty from Britain, Spain, 

14. Some of the material in this section appears in "How We Bought the United 
States," Collier's, Jan. 19, 1946, pp. 23, 62, 77, and in an adaptation thereof in This 
Month, May, 1946, pp. 106-10. 


France, Mexico, and Russia, and that for all the continental lands so 
purchased we paid about 50 million dollars out of the Federal Treasury. 
Most of us believe this story as unquestioningly as we believe in electricity 
or corporations. We have seen little maps of the United States in our 
history books and big maps in our geography books showing the vast 
area that Napoleon sold us in 1803 for 15 million dollars and the various 
other cessions that make up the story of our national expansion. As for 
the original Indian owners of the continent, the common impression is 
that we took the land from them by force and proceeded to lock them up 
in concentration camps called "reservations." 

Notwithstanding this prevailing mythology, the historic fact is that 
practically all of the real estate acquired by the United States since 1776 
was purchased not from Napoleon or any other emperor or czar but from 
its original Indian owners. 15 What we acquired from Napoleon in the 
Louisiana Purchase was not real estate, for practically all of the ceded 
territory that was not privately owned by Spanish and French settlers was 
still owned by the Indians, and the property rights of all the inhabitants 
were safeguarded by the terms of the treaty of cession. 16 What we did 
acquire from Napoleon was not the land, which was not his to sell, but 
simply the power to govern and to tax, the same sort of power that we 
gained with the acquisition of Puerto Rico or the Virgin Islands a cen- 
tury later. 

It may help us to appreciate the distinction between a sale of land 
and the transfer of governmental power if we note that after paying 

15. This discrepancy between common opinion and historic fact was commented 
upon by Thomas Jefferson: 

"That the lands of this country were taken from them by conquest, is not so general 
a truth as is supposed. I find in our historians and records, repeated proofs of pur- 
chase, which cover a considerable part of the lower country; and many more would 
doubtless be found on further search. The upper country, we know, has been acquired 
altogether by purchases made in the most unexceptional form," (Thomas Jefferson, 
"Notes on the State of Virginia, 1781-1785," reprinted in Padover, The Complete 
Jefferson (1943), p. 633.) 

16. The Treaty of April 30, 1803, for the cession of Louisiana, provided: 

"Art. III. The inhabitants of the ceded territory shall be incorporated in the Union 
of the United States, and admitted as soon as possible, according to the principles 
of the Federal constitution, to the enjoyment of all the rights, advantages and im- 
munities of citizens of the United States; and in the meantime they shall be main- 
tained and protected in the free enjoyment of their liberty, property, and the religion 
which they profess." 

"Art. VI. The United States promise to execute such treaties and articles as may 
have been agreed between Spain and the tribes and nations of Indians, until by mutual 
consent of the United States and the said tribes or nations, other suitable articles shall 
have been agreed upon/* 



Napoleon 15 million dollars for the cession of political authority over 
the Louisiana Territory we proceeded to pay the Indian tribes of the 
ceded territory more than twenty times this sum for such lands in their 
possession as they were willing to sell. And while Napoleon, when he 
took his 15 million dollars, was thoroughly and completely relieved of all 
connections with the territory, the Indian tribes were wise enough to 
reserve 17 from their cession sufficient land to bring them a current in- 
come that exceeds each year the amount of our payment to Napoleon. 
One of these reservations, that of the Osages, has thus far brought its 
Indian owners 280 million dollars in oil royalties. Some other Indian 
tribes, less warlike, or less lucky, than the Osages, fared badly in their real 
estate transactions with the Great White Father. But in its totality the 
account of our land transactions with the Indians is not small potatoes. 
While nobody has ever calculated the total sum paid by the United States 
to Indian tribes as consideration for more than two million square miles 
of land purchased from them, and any such calculation would have to 
take account of the conjectural value of a myriad of commodities, special 
services, and tax exemptions, which commonly took the place of cash, a 
conservative estimate would put the total price of Indian lands sold to 
the United States at a figure somewhat in excess of 800 million dollars. 

In some cases payment for ceded land has been long delayed. Most of 
the State of California falls within an area which various Indian tribes 
of that region had undertaken to cede to the United States in a series of 
treaties executed in the 1 850*5. The treaties called for a substantial pay- 
ment in lands, goods, and services. The Federal Government took the 
land but the Senate refused to ratify the treaties, which were held in 
secret archives for more than half a century. Eventually Congress au- 
thorized the Indians to sue in the Court of Claims for the compensation 
promised under the unratified treaties, 18 and that Court found that the 
Indians were entitled to receive $17,053,941.98, from which, however, 
various past expenditures by the Federal Government for the benefit of 
the California Indians had to be deducted. The net recovery amounted to 

The settlement of the California land claims closes a chapter in our 
national history. Today we can say that from the Atlantic to the Pacific 

17. "Indian reservations" acquired their name from the fact that when Indians 
ceded land they commonly made "reservations" of land to be retained in Indian owner- 
ship. This practice goes back at least to 1640, when Uncas, the Mohican chief, deeded 
a large area to the Colony of Connecticut, out of which he carved a reservation for 
himself and his tribe. See Trumbull, History of Connecticut, i (1818) 117. 

18. Act of May 18, 1928, 45 Stat. 602. 



our national public domain consists, with rare exceptions, 19 of lands that 
we have bought from the Indians. Here and there we have probably 
missed a tract, or paid the wrong Indians for land they did not own and 
neglected the rightful owners. But the keynote of our land policy has 
been recognition of Indian property rights. 20 And this recognition of In- 

19. The most significant exception is Alaska, where the Federal Government has 
not yet acquired any land from any of the native tribes. Cf. Miller v. United States, 
(C.CA. gth, 1947) 159 F. (sd) 997. Other areas for which no compensation appears 
to have been made are found in Southeastern California, Southern Nevada, Arizona 
and New Mexico. See Frontispiece to 4th ed. of Cohen, Handbook of Federal Indian 
Law (1945). 

20. The Report of the Commissioner of Indian Affairs for 1872 contains the fol- 
lowing illuminating comments: 

"Such being the right of the Indians to the soil, the United States for more than 
eighty-five years pursued a uniform course of extinguishing the Indian title only 
with the consent of those Indian tribes which were recognized as having claim by 
reason of occupancy: such consent being expressed in treaties, to the formation of 
which both parties approached as having equal rights of initiative, and equal rights 
in negotiation. These treaties were made from time to time (not less than 372 being 
embraced in the General Statutes of the United States) as the pressure of white settle- 
ments or the fear or the experience of Indian hostilities made the demand for the 
removal of one tribe after another urgent imperative. Except only in the case of the 
Indians in Minnesota, after the outbreak of 1862, the United States Government has 
never extinguished an Indian title as by right of conquest; and in this latter case the 
Government provided the Indians another reservation, besides giving them the proceeds 
of the sales of the lands vacated by them in Minnesota. So scrupulously up to that 
time had the right of the Indians to the soil been respected, at least in form. It is 
not to be denied that wrong was often done in fact to tribes in the negotiation of 
treaties of cession. The Indians were not infrequently overborne or deceived by the 
agents of the Government in these transactions; sometimes, too unquestionably, power- 
ful tribes were permitted to cede lands to which weaker tribes had a better claim, 
but, formally at least, the United States accepted the cession successively of all lands 
to which Indian tribes could show color of title, which are embraced in the limits of 
any of the present States of the Union, except California and Nevada. Up to 1868, 
moreover, the greater portion of the lands embraced within the present Territories of 
the United States, to which Indians could establish a reasonable claim on account 
of occupancy, had also been ceded to the United States in treaties formally complete 
and ratified by the Senate. 

"This action of Congress [terminating the process of making treaties with Indian 
tribes] does, however, present questions of considerable interest and of much difficulty, 
viz: What is to become of the rights of the Indians to the soil, over portions of terri- 
tory which had not been covered by treaties at the time Congress put an end to the 
treaty system? What substitute is to be provided for that system, with all its absurdities 
and abuses? How are Indians, never yet treated with, but having every way as good 
and as complete rights to portions of our territory as had the Cherokees, Creeks, 


dian property rights, far from hampering the development of our land, 
was of the greatest significance in such development. Where the govern- 
ment had to pay Indians for land it could not afford to give the land 
away to favored retainers who could, in turn, afford to hold the land in 
idleness. Because land which the government had paid for had to be sold 
to settlers for cash or equivalent services, our West has escaped the fate 
of areas of South America, Canada, and Australia, which, after being 
filched from native owners, were turned over, at the same price, to court 
favorites, government bureaus, or other absentee owners incapable of, 
or uninterested in, developing the potential riches of the land. 

Granted that the Federal Government bought the country from the 
Indians, the question may still be raised whether the Indians received 
anything like a fair price for what they sold. The only fair answer to 
that question is that except in a very few cases where military duress was 
present the price paid for the land was one that satisfied the Indians. 
Whether the Indians should have been satisfied and what the land would 
be worth now if it had never been sold are questions that lead us to 
ethereal realms of speculation. The sale of Manhattan Island for $24 
is commonly cited as a typical example of the white man's overreaching. 
But even if this were a typical example, which it is not, the matter of 
deciding whether a real estate deal was a fair bargain three hundred 
years after it took place is beset by many pitfalls. Hindsight is better 
than foresight, particularly in real estate deals. Whether the land the 
Dutch settlers bought would become a thriving metropolis or remain 
a wilderness, whether other Indian tribes or European powers would 
respect their title, and how long the land would remain in Dutch owner- 

Choctaws, and Chickasaws, for instance, to the soil of Georgia, Alabama, and Missis- 
sippi, to establish their rights? How is the Government to proceed to secure their 
relinquishment of their lands, or to determine the amount of compensation which 
should be paid therefor? Confiscation, of course, would afford a very easy solution for 
all difficulties of title, but it may fairly be assumed that the United States Government 
will scarcely be disposed to proceed so summarily in the face of the unbroken practice 
of eighty-five years, witnessed in nearly four hundred treaties solemnly ratified by 
the Senate, not to speak of the two centuries and a half during which the principal 
nations of Europe, through all their wars and conquests, gave sanction to the rights 
of the aborigines. 

"The limits of the present report will not allow these questions to be discussed; but 
it is evident that Congress must soon, if it would prevent complications and unfortu- 
nate precedents, the mischiefs of which will not be easily repaired, take up the whole 
subject together, and decide upon what principles and by what methods the claims 
of Indians who have not treaty relations with the Government, on account of their 
original interest to the soil, shall be determined and adjusted . . ." 



ship were, in 1626, questions that were hid in the mists of the future. 
Many acres of land for which the United States later paid the Indians 
in the neighborhood of $1.25 an acre, less costs of surveying, still remain 
on the land books of the Federal Government, which has found no pur- 
chasers at that price and is now content to lease the lands for cattle graz- 
ing at a net return to the Federal Government of one or two cents per 
annum per acre. 

Aside from the difference between hindsight and foresight, there is the 
question of the value of money that must be considered wherever we seek 
to appraise a goo-year-old transaction. There are many things other than 
Manhattan Island that might have been bought in 1626 for $24 that 
would be worth great fortunes today. Indeed if the Indians had put 
the $24 they received for Manhattan at interest at 6 per cent they could 
now, with the accrued interest, buy back Manhattan Island at current 
realty valuations and still have four hundred million dollars or more left 
over. Besides which, they would have saved the billions of dollars that 
have been spent on streets, harbors, aqueducts, sewers, and other public 
improvements to bring the realty values of the island to their present 

Again in appraising the value of $24 worth of goods in 1626 one must 
take account of the cost of delivery. How much did it cost in human life 
and labor to bring $24 worth of merchandise from Holland to Manhattan 
Island across an almost unknown ocean? What would $24 worth of food 
f.o.b. New York be worth to an exploring party at the South Pole today 
that needed it? 

These are factors which should caution against hasty conclusions as to 
the inadequacy of payments for land sales made hundreds of years ago, 
even when such sales were made between white men. But in the earliest 
of our Indian land sales we must consider that representatives of two en- 
tirely different civilizations were bargaining with things that had very 
different values to the different parties. It is much as if a representative 
of another planet should offer to buy sea water or nitrogen or some other 
commodity of which we think we have a surplus and in exchange offer 
us pocket television sets or other products of a technology higher than 
our own. We would make our bargains regardless of how valuable 
nitrogen or sea water might be on another planet and without consider- 
ing whether it cost two cents or a thousand dollars to make a television 
set in some part of the stellar universe that we could not reach. In these 
cases we would be concerned only with the comparative value to us of 
what we surrendered and what we obtained. 

So it was with the Indians. What they secured in the way of knives, 



axes, kettles and woven cloth, not to mention rum and firearms, 21 repre- 
sented produce of a superior technology with a use value that had no 
relation to value in a competitive market three thousand miles across 
the ocean. And what is probably more important, the Indians secured, 
in these first land transactions, something of greater value than even 
the unimagined products of European technology, namely, a recognition 
of the just principle that free purchase and sale was to be the basis of 
dealings between the native inhabitants of the land and the white im- 

Three years after the sale of Manhattan Island the principle that In- 
dian lands should be acquired only with the consent of the Indians was 
written into the laws of the Colony of New Netherlands: "The Patroons 
of New Netherlands, shall be bound to purchase from the Lords Sachems 
in New Netherland, the soil where they propose to plant their colonies, 
and shall acquire such right thereunto as they will agree for with the 
said Sachems." 22 Connecticut, New Jersey, and Rhode Island were quick 
to adopt similar laws and within a short time all of the colonies had 
adopted laws in the same vein. Only in Massachusetts and North Caro- 
lina were there significant departures from this just and honorable policy. 
In North Carolina generally anarchic conditions left individual settlers 
relatively free to deal with or dispose of Indians as they pleased, with 
the result that less than half of the state was actually purchased from 
the natives. In Massachusetts, although Plymouth Colony "adopted the 
just policy of purchasing from the natives the lands they desired to ob- 
tain" (Royce, op. cit. p. 601), Puritan Massachusetts, with much pious 
citation of Old Testament precedents, asserted the right to disregard 
Indian claims to unimproved and uncultivated lands. Despite this claim, 
the Puritans were prudent enough to purchase considerable areas of land 
from the native inhabitants. 

In 1636 one of the most famous real estate transactions in American 
history took place when Chief Canonicus of the Narragansetts granted 
to Roger Williams and his 12 companions, "all that neck of land lying 
between the mouths of Pawtucket and Moshasuck rivers, that they might 
sit down in peace upon it and enjoy it forever." 

Here, as Williams observed to his companions, "The Providence of God 

21. In addition to the items listed above, items commonly listed in the earliest 
treaties are: flints, scissors, sugar, clothing, needles and hoes. Later treaties commonly 
mention horses, cattle, hogs, sheep, farm implements, looms, sawmills, flour mills, 
boats, and wagons. 

22. "New Project of Freedoms and Exemptions, Article 27," reprinted in Royce, 
Indian Land Cessions in the United States (i8th Annual Report, Bureau of American 
Ethnology, 1900) p. 577. 



had found out a place for them among savages, where they might peace- 
ably worship God according to their consciences; a privilege which had 
been denied them in all the Christian countries they had ever been in." 
Perhaps it was only natural that the first settlers on these shores, who 
were for many decades outnumbered by the Indians and unable to defeat 
any of the more powerful Indian tribes in battle, should have adopted 
the prudent procedure of buying lands that the Indians were willing to 
sell instead of using the more direct methods of massacre and displace- 
ment that have commonly prevailed in other parts of the world. What 
is significant, however, is that at the end of the i8th Century when our 
population east of the Mississippi was at least 20 times as great as the 
Indian population in the same region and when our army of Revolu- 
tionary veterans might have been used to break down Indian claims to 
land ownership and reduce the Indians to serfdom or landlessness, we 
took seriously our national proclamation that all men are created equal 
and undertook to respect the property rights which Indians had enjoyed 
and maintained under their rude tribal governments. Our national policy 
was firmly established in the first great act of our Congress, the North- 
west Ordinance of July 13, 1787, which declared: 

Art. 3. ... The utmost good faith shall always be observed to- 
wards the Indians; their land and property shall never be taken 
from them without their consent; and in their property, rights and 
liberty, they never shall be invaded or disturbed, unless in just and 
lawful wars authorized by Congress; but laws founded in justice and 
humanity shall from time to time be made, for preventing wrongs 
being done to them, and for preserving peace and friendship with 

Here was a principle of government far higher than contemporary 
standards of private dealing. During much of this period pioneers were 
shooting Indians and denouncing the long arm of the Federal bureauc- 
racy that tried to protect Indian lands from trespass and Indians from 
debauchery. 23 The most famous of all Indian cases 24 was one in which 
the Supreme Court of the United States denied the power of the State 
of Georgia to invade the territory of the Cherokees, guaranteed by Fed- 
eral treaty, and the State of Georgia defied the mandate of the Court, 
whereupon the tough Indian fighter in the White House grimly declared: 

23. This refrain is still heard in remote mining towns of Arizona and in Alaska, 
particularly among survivors of the Alaskan Gold Rush, who knew what to do when 
they saw an Indian. 

24. Worcester v. Georgia, (1833) 6 Pet. 515. 



"John Marshall has made his decision; now let him enforce it." 25 But 
the Congress and the Federal Courts stood by the principle of respect 
for Indian possessions until it won common acceptance. 

As far back in our national history as 1794 we find the United States 
agreeing to pay the Iroquois, for a cession of land, the sum of $4,500 
annually forever, in "clothing, domestic animals, implements of hus- 
bandry, and other utensils . . . and in compensating useful artificers who 
shall ... be employed for their benefit/' 26 The payments are still being 
made, with much ceremony. In 1835 we ^ n ^ tne Federal Government 
buying a tract of land from the Cherokees for 5 million dollars, 27 a very 
large part of the annual national budget in those days. 28 In 1904 the 
Turtle Mountain Chippewa sold a large part of North Dakota to the 
United States for one million dollars. 29 To this day we are paying Indians 
for lands long ago conveyed. Only occasionally does this payment take 
the form of cash. Far-seeing Indian chiefs knew that cash would soon 
be dissipated and leave later generations helpless in an alien world that 
had no place for ancient skills of hunters. Regularly the old treaties 
called for payments in goods, chiefly agricultural implements and cattle, 
in services above all medical services and education and in such spe- 
cial privileges as exemption from certain land taxes, because of which 
the Federal Government must now furnish to Indians many services 
which states and counties refuse to provide. It was to furnish these serv- 
ices that the Indian Bureau was established, and to this day the appropria- 
tions to that Bureau go primarily to paying for these promised services. 
We have already spent at least one and a half billion dollars on our 
Indian population, and more than half of this sum is traceable to obliga- 
tions based on land cessions. 

This is not to say that our Indian record is without its dark pages. We 
have fallen at times from the high national standards we set ourselves. 

The purchase of more than two million square miles of land from the 
Indian tribes represents what is probably the largest real estate transac- 
tion in the history of the world. It would be miraculous if, across a 
period of 150 years, negotiations for the purchase and sale of these lands 
could be carried on without misunderstandings and inequities. We have 
been human, not angelic, in our real-estate transactions. We have driven 

25. Greeley, American Conflict, i (1864), 106. 

26. Treaty of November 11, 1794, 7 Stat. 44. 

27. Treaty of December 29, 1835, 7 Stat. 478. 

28. The total expenditures of the Federal Government in 1835 amounted to 17,6 
million dollars. See Report of Secretary of the Treasury (1946), p. 366. 

29. Act of April 21, 1904, 33 Stat. 189, 195. 



hard Yankee bargains when we could; we have often forgotten to make 
the payments that we promised, to respect the boundaries of lands that 
the Indians reserved for themselves, or to respect the privileges of tax 
exemption, or hunting and fishing, that were accorded to Indian tribes 
in exchange for the lands they granted us. But when Congress has been 
fairly apprised of any deviation from the plighted word of the United 
States, it has generally been willing to submit to court decision the claims 
of any injured Indian tribe. 30 And it has been willing to make whatever 
restitution the facts supported for wrongs committed by blundering or 
unfaithful public servants. There is no nation on the face of the earth 
which has set for itself so high a standard of dealing with a native 
aboriginal people as the United States and no nation on earth that has 
been more self-critical in seeking to rectify its deviations from those high 

The 5 million dollar judgment won by the California Indians is only 
the most recent of a series of awards won by Indian tribes in the Federal 
Courts. In 1938 the Supreme Court awarded the Shoshone Tribe of 
Wyoming a judgment of $4,408,444.23, as compensation for the loss of a 
part of the Shoshone Reservation which Federal authorities illegally (i.e. 
without the consent of the Shoshone owners of the reservation) assigned 
to Indians of another tribe. 31 The same session of the Court affirmed a 
judgment in favor of the Klamath Indians for 15,313,347.32, the value 
of lands reserved by the Klamaths for their own use which the United 
States erroneously conveyed to the State of Oregon. 32 What is important 
about these cases is that they represent an honest, if sometimes belated, 
effort to make good on the promises that the Federal Government has 
made to Indian tribes in acquiring the land of this nation. And, as a 
great leader of the 30 million Indians who dwell south of our borders 
has said, what is great about democracy is not that it does not make mis- 
takes, but that It is willing to correct the human mistakes it has made. 33 


The decisions on Indian title can hardly be understood unless it is rec- 
ognized that dealings between the Federal Government and the Indian 

30. For many decades such cases were tried under special jurisdictional acts. By the 
act of August 6, 1946, all existing tribal claims against the Government were referred 
to a special Indian Claims Commission, and jurisdiction was granted to the Court of 
Claims to hear and decide all future tribal claims. See 60 Stat. 1049, 25 U.S.CA. 
(1946 Supp.) 70, 28 U.S.C.A. (1946 Supp.) 2593. 

31. United States v, Shoshone Tribe, (1938) 304 U.S. ui. 

32. United States v. Klamath Indians, (1938) 304 U.S. 119. 

33. Padilla, Free Men of America (1943), p. 71. 



tribes have regularly been handled as part of our international relations. 
As in other phases of law which turn on international relations, common 
law concepts have become heavily overlaid with continental jurispru- 
dence. Our concepts of Indian title derive only in part from common law 
feudal concepts. In the main, they are to be traced to Spanish origins, 
and particularly to doctrines developed by Francisco de Vitoria, the real 
founder of modern international law. 34 

The argument that Indians stood in the way of civilization and that 
progress demanded that they be pushed from the lands they claimed, fell 
as lightly from the lips of i6th century pirates and conquistadores as it 
does from those of the soth century. The contrary suggestion, first ad- 
vanced by Vitoria, a university professor at Salamanca, that Indians were 
human beings and that their land titles were entitled to respect even 
when not graced by seals and ribbons, was denounced as "long haired 
idealism" by "practical minded" men in the i6th century, as it is today. 
But, in the long run, this idealistic and supposedly impractical concept 
of human rights helped to build the greatest state and the strongest 
economy in the world. The conquistadores and pirates of i6th century 
Spain and their lawyer spokesmen, in attempting to justify a wholesale 
seizure of Indian lands in the New World, urged that Indians were 
heretics, tainted with mortal sin, and irrational. To this argument Vitoria 
replied that even heretics and sinners were entitled to own property and 
could not be punished for their sins without trial, and that the Indians 
were at least as rational as some of the people of Spain. Vitoria cites as 
precedents, in support of Indian property rights, cases of heretics and 
sinners in Europe and in ancient Palestine whose rights were acknowl- 
edged by the highest Church authorities. Implicit in the argument is 
the doctrine that certain basic rights inhere in men as men not by reason 
of their race, creed, or color, but by reason of their humanity. 

To the argument that the Pope had given Indian lands to the Kings 
of Spain and Portugal, Vitoria replied that the Pope had "no temporal 
power over Indian aborigines" (De Indis, 2, 6). Thus a division of the 
New World by the Pope could serve only as an allocation of zones for 
trading and proselytizing purposes, not as a distribution of land (De 
Indis, 3, 10). 

34. James Brown Scott, former Solicitor for the Department of State and President 
of the American Institute of Law, the American Society of International Law, and 
the Institut de Droit International, in his brochure on The Spanish Origin of Inter- 
national Law (1928), comments: "In the lecture of Vitoria on the Indians, and in his 
smaller tractate on War, we have before our very eyes, and at hand, a summary of 
the modern law of nations." The Seventh Pan-American Conference, on December 
23, *943 acclaimed Vitoria as the man "who established the foundations of modern 
international law." 



The shibboleth of "title by discovery" Vitoria disposes of summarily. 
Discovery gives title to lands not already possessed. But as the Indians 
"were true owners, both from the public and the private standpoint/' the 
discovery of them by the Spaniards had no more effect on their property 
than the discovery of the Spaniards by the Indians had on Spanish 
property. 35 

The doctrine of Vitoria was given papal support in 1537 by the Bull 
Sublimis Deus, in which Pope Paul III proclaimed: 

We, who, though unworthy, exercise on earth the power of our 
Lord and who seek with all our might to bring those sheep of His 
flock who are outside, into the fold committed to our charge, con- 
sider, however, that the Indians are truly men and that they are not 
only capable of understanding the Catholic faith but, according to 
our information, they desire exceedingly to receive it. Desiring to pro- 
vide ample remedy for these evils, we define and declare by these our 
letters, or by any translation thereof signed by any notary public and 
sealed with the seal of any ecclesiastical dignitary, to which the same 
credit shall be given as to the originals, that, notwithstanding what- 
ever may have been or may be said to the contrary, the said Indians 
and all other people who may later be discovered by Christians, are 
by no means to be deprived of their liberty or the possession of their 
property, even though they be outside the faith of Jesus Christ; and 
that they may and should, freely and legitimately, enjoy their liberty 
and the possession of their property; nor should they be in any way 
enslaved; should the contrary happen, it shall be null and of no 

Almost word for word, this declaration of human rights is re-echoed 
in the first important law of the United States on Indian relations, the 
Northwest Ordinance of 1787, adopted two years before the Federal Con- 
stitution. 56 

Vitoria's doctrine of respect for Indian possessions became the guiding 
principle of Spain's Laws of the Indies; the parallel promise of the North- 
west Ordinance became the guiding principle of our federal Indian law. 37 

35. De Indis, 2, 7. Cf. Marshall, C. J., in Worcester v. Georgia, (1832) 6 Pet. 515: 
"It is difficult to comprehend the proposition that the inhabitants of either quarter of 
the globe could have rightful original claims of dominion over the inhabitants of 
the other, or over the lands they occupied; or that the discovery of either by the 
other should give the discoverer rights in the country discovered, which annulled the 
pre-existing rights of its ancient possessors." (p. 543) 

36. See supra p. 286. 

37. See F. S. Cohen, "The Spanish Origin of Indian Rights in the Law of the United 
States," [above, p. 230]. 


Conquistadores, pirates, and even administrative officials sworn to obey 
the law have not always adhered to this high principle. But if the prin- 
ciple of respect for Indian possessions has not been applied at 100 per 
cent of its face value, it has been applied at least to the extent that $800,- 
000,000.00 or so of federal funds has so far been appropriated for the 
purchase of Indian lands. To pay $800,000,000.00 for a principle is not 
a common occurrence in the world's history, but in the long run this 
impractical "long haired" expenditure has probably proved the wisest 
investment the United States ever made. 

Fair dealing by the Federal Government cemented the loyalty of In- 
dians to the United States, a loyalty which has been an important factor 
in every war we have fought, and as well in all our years of peace. Fair 
dealing by the Federal Government assuaged the outrages committed on 
Indians by their neighbors 3S and helped to preserve a people who, with- 
out federal protection, might have succumbed to the rapacity of European 
civilization. Each year Indian contributions to our economy run to many 
times the amount we have paid the Indians for their lands, and the In- 
dian contribution to our economy and our American way of life is far 
from being exhausted. Though we owe to the Indian many of our sports, 
recreations, highways, drugs, food habits, and political institutions, 39 and 
most of our agricultural staples, 40 we have still to acquire from the In- 
dian many skills and intangible resources that would be lost forever if 
Indian cultures were forthwith destroyed, as many chauvinists advocate. 41 

It is against this historical background of fact and doctrine that the 

38. "Because of the local ill feeling, the people of the States where they are found 
are often their deadliest enemies." United States v. Kagama, (1886) 118 U.S. 375, 384. 
Denial of the right of Indians to vote and receive social security benefits is found 
today only in the two states most recently admitted to the Union, Arizona and New 
Mexico. Efforts of the Federal Government to end these discriminations have met 
much local hostility, as have federal efforts to protect native land rights in Alaska 
where the frontier spirit still prevails. [Ed. note: In cases presented by Felix Cohen, 
the Indians in Arizona and New Mexico subsequently won the right to vote and to 
receive social security benefits. See Ed, note at the end of Note 3, p. 233 and see also 
below, pp. 328-30.] 

39. See the essay of Lucy M. Kramer on "Indian Contributions to American Culture," 
in Indians Yesterday and Today, (U.S. Dept. of Interior, 1941). 

40. It has been estimated by competent authorities that four-sevenths of the total 
agricultural production in the United States (in farm value) consists of plants do- 
mesticated by Indians and taken over by whites, and it has been noted that where 
the whites took over plants they also took over Indian method of planting, irrigation, 
cultivation, storage, and use. See Edwards, Agriculture of the American Indian, (US. 
Dept. of Agriculture, 1933) p. v; Bureau of American Ethnology, Bulletin No. 30, i, 25. 

41. The 1890 Census Report on Indians, at p. 57, shows the high- water mark of 
such chauvinism. See F. S. Cohen, "Indian Claims" [above, pp. 265-66]. 



cases on Indian title must be viewed if they are to be understood. Only 
against such a background is it possible to distinguish between those cases 
that mark the norms and patterns of our national policy and those that 
illustrate the deviations and pathologies resulting from misunderstanding 
and corruption. It is perhaps inevitable that any high ideal should prove 
too hard to live by in times of stress, but when a principle has survived 
the stresses of many wars, financial panics, and outbreaks of chauvinism, 
it becomes important to distinguish the basic principle from the "scatter- 
ing" forces, just as it becomes important to distinguish in physics be- 
tween the principle of gravitation and the deflecting forces of air fric- 
tion, air pressure, terrestrial motion, etc., that make some bodies drop 
slantwise or rise instead of dropping. Indeed, it is only with some under- 
standing of the norms of institutional conduct that one can determine 
whether the norms of the past are continuing to exert their influence, or 
whether the deviations of yesterday will be the norms of tomorrow. 


The cases on original Indian title show the development across twelve 
decades of a body of law that has never rejected its first principles. The 
law of Indian title is thus particularly susceptible to historical analysis. 
Ten cases fix its outlines. 

i. The Sovereign's Title: Johnson v. Mclntosh.^ 

The first important Indian case decided by the Supreme Court estab- 
lished the proposition that a private individual claiming title to land by 
reason of a private purchase from an Indian tribe not consented to by 
the sovereign, could not maintain that title against the United States or 
its grantees, where the United States had acquired the land in question 
from the Indians by treaty. The dismissal of the plaintiffs' complaint in 
this case was not based upon any defect in the Indians' title, but solely 
upon the invalidity of the Indian deed through which the white plaintiffs 
claimed title. When the case was decided, the land (on the Wabash River) 
had not been occupied by Indians for some fifty years. They had received 
more than $55,000.00 for the land from the original vendees, Moses 
Franks, Jacob Franks and their associates, they had then sold the same 
land to the United States, 43 and they had removed from the tract that 
they had sold. At the time of the federal grant to the defendants, in 

4*. (1823) 8 Wheat. 543. 

43. Treaty of August 3, 1795, 7 Stat. 49; Treaty of June 7, 1803, 7 Stat. 74. 



1818, there was no Indian title to encumber the grant. The decision of 
the court that a private sale of Indian lands not consented to by the 
sovereign gave the purchaser no valid title against the sovereign, has 
never been questioned in the years since this decision was rendered, nor 
has there been any successful challenge of the rule which the court then 
formulated, viz., that Indian title could be extinguished only by, or with 
the consent of, the government. Justice Marshall's opinion in the case 
makes it clear that while the sovereign could extinguish Indian title by 
treaty or by war, Indian title would not be extinguished by a grant to 
private parties and that such a grantee would take the land subject to 
Indian possessory rights 

. . . the rights of the original inhabitants were, in no instance, 
entirely disregarded; but were necessarily, to a considerable extent, 
impaired. They were admitted to be the rightful occupants of the 
soil, with a legal as well as just claim to retain possession of it, and 
to use it according to their own discretion; but their rights to com- 
plete sovereignty, as independent nations, were necessarily dimin- 
ished, and their power to dispose of the soil at their own will, to 
whomsoever they pleased, was denied by the original fundamental 
principle that discovery gave exclusive title to those who made it. 

While the different nations of Europe respected the right of the 
natives, as occupants, they asserted the ultimate dominion to be in 
themselves; and claimed and exercised, as a consequence of this 
ultimate dominion, a power to grant the soil, while yet in possession 
of the natives. These grants have been understood by all to convey 
a title to the grantees, subject only to the Indian right of occupancy. 
(P- 574-) 

It is perhaps Pickwickian to say that the Federal Government exercised 
power to make grants of lands still in Indian possession as a consequence 
of its "dominion" or "title." A realist would say that federal "dominion" 
or "title" over land recognized to be in Indian ownership was merely a 
fiction devised to get around a theoretical difficulty posed by common law 
concepts. According to the hallowed principles of the common law, a 
grant by a private person of land belonging to another would convey no 
title. To apply this rule to the Federal Government would have produced 
a cruel dilemma: either Indians had no title and no rights or the federal 
land grants on which much of our economy rested were void. The Su- 
preme Court would accept neither horn of this dilemma, nor would it 
say, as a modern realist might say, that the Federal Government is not 
bound by the limitations of common law doctrine and is free to dispose 



of property that belongs to Indians or other persons as long as such 
persons are paid for their interests before their possession is impaired. 
But such a way of putting the matter would have run contrary to the 
spirit of the times by claiming for the Federal Government a right to 
disregard rules of real property law more sacred than the Constitution 
itself. And this theoretical dilemma was neatly solved by Chief Justice 
Marshall's doctrine that the Federal Government and the Indians both 
had exclusive title to the same land at the same time. Thus a federal grant 
of Indian land would convey an interest, but this interest would not be- 
come a possessory interest until the possessory title of the Indians was 
terminated by the Federal Government. The Indians were protected. The 
grantees were protected assuming that the Federal Government went 
ahead to secure a relinquishment of Indian title. The power of the 
Federal Government was recognized. And the needs of feudal land tenure 
theory were fully respected. Even if we are no longer interested in the 
niceties of theory, the reconciliation of Indian rights and grantee rights 
which Marshall worked out must command our respect. 

2. Indian Title vs. Colony and State: Worcester v. Georgia** 

The second great landmark in the law of Indian title is established by 
Chief Justice Marshall's opinion in Worcester v. Georgia, where the land 
involved in suit was in the present possession of Indians. The Supreme 
Court in this case decided that the State of Georgia could not exercise 
jurisdiction over Indian lands, i.e. that Indian title could not be ignored 
by a state. The Chief Justice took great care to point out that neither 
Johnson v. Mclntosh nor any other decision had denied the validity of 
Indian title, and that the principle of sovereign title by "discovery" was 
in no way inconsistent with Indian title. 

This principle, acknowledged by all Europeans, because it was the 
interest of all to acknowledge it, gave to the nation making the dis- 
covery, as its inevitable consequence, the sole right of acquiring the 
soil and of making settlements on it. It was an exclusive principle 
which shut out the right of competition among those [Europeans] 
who had agreed to it; not one which could annul the previous rights 
of those who had not agreed to it. It regulated the right given by 
discovery among the European discoverers; but could not affect the 
rights of those already in possession, either as aboriginal occupants, 
or as occupants by virtue of a discovery made before the memory of 

44. (1832) 6 Pet. 515. 



man. It gave the exclusive right to purchase, but did not found that 
right on a denial of the right of the possessor to sell. (p. 544) 

Much of Chief Justice Marshall's opinion in this case may be dismissed 
as unnecessary to the decision, and of course, strictly speaking, no opinion 
or rule is ever logically necessary to any decision. 45 But certainly an im- 
portant step in the process by which the Supreme Court came to its deci- 
sion in Worcester v. Georgia was the conclusion that when the Crown 
gave to the Colony of Georgia whatever rights and powers the Crown 
had in Cherokee lands, this did not terminate or alter the Cherokee Na- 
tion's original title, which survived the Crown grant and later became 
the basis of Cherokee treaties with the Federal Government. The case 
thus stands squarely for the proposition adumbrated in Johnson v. 
Mclntosh* 6 that a grant by the sovereign of land in Indian occupancy 
does not abrogate original Indian title. 

3. The Transferability and the Scope of Indian Title: 
Mitchel v. United States. 47 

Whereas Johnson v. Mclntosh had held that an unauthorized Indian sale 
could not give a title superior to that later obtained by treaty, the case 
of Mitchel v. United States dealt with the obverse situation where the 
Indian sale relied upon had been made with the consent of the sovereign. 
In such case, the Court held, the purchaser from the Indians secured a 
title superior to any title which the United States could assert. The 
United States, the Court held, could not acquire from the King of Spain 
what was not the King's property, and the property of Indians or their 
grantees could not become royal or government property without formal 
judicial action. 48 Indian property was no different in this respect from 
the property of white men: 

. . . One uniform rule seems to have prevailed from their first 
settlement, as appears by their laws; that friendly Indians were 
protected in the possession of the lands they occupied, and were 
considered as owning them by a perpetual right of possession in the 
tribe or nation inhabiting them, as their common property, from 

45. See F. S. Cohen, Ethical Systems and Legal Ideals (1933), pp. 34-35. 

46. (1823) 8 Wheat. 543, at 591. 
47- (1835) 9 Pet. 711. 

48. "If the king has no original right of possession to lands, he cannot acquire it 
without office found, so as to annex it to his domain." 9 Pet. at 743. 



generation to generation, not as the right of the individuals located 
on particular spots. 

Subject to this right of possession, the ultimate fee was in the 
crown and its grantees, which could be granted by the crown or 
colonial legislatures while the lands remained in possession of the 
Indians, though possession could not be taken without their consent. 
(9 Pet. 711, at 745) 

What had been conceded, by way of dictum, in Johnson v. Mclntosh, 
namely that Indian title included power to transfer as well as to occupy, 
is the core of the decision in the Mitchel case. 

Finally the Mitchel case clarifies the scope of the rule of respect for 
Indian possessions by expressly rejecting the view that such possession 
extended only to improved lands. Said the Court: 

Indian possession or occupation was considered with reference to 
their habits and modes of life; their hunting grounds were as much 
in their actual possession as the cleared fields of the whites; and their 
rights to its exclusive enjoyment in their own way and for their own 
purposes were as much respected, until they abandoned them, made 
a cession to the government, or an authorized sale to individuals. 

(P- 745) 

4. Indian Title vs. The Sovereign in Louisiana Territory: 
Choteau v. MoZony. 49 

The Choteau case presents facts very similar to those in Johnson v. 
Mclntosh,, and reaffirms the holding of that case that one who claims 
under an unauthorized grant of Indian lands cannot prevail against a 
grantee whose title is based upon an Indian treaty cession and a sub- 
sequent federal grant. In the Choteau case, however, the plaintiff's in- 
valid grant was not invalid because it lacked government consent. It was 
invalid because it lacked Indian consent. The Court held that under the 
Spanish law applicable in the Louisiana Territory the possessory rights of 
the Fox Tribe of Indians in lands aboriginally occupied by them were 
such that any grants made by the Spanish Governor would be "subject to 
the rights of Indian occupancy. They would not take effect until that 
occupancy had ceased, and whilst it continued it was not in the power of 
the Spanish Governor to authorize anyone to interfere with it" (p. 239). 
Thus the case recognizes, as did the Mitchel case, that even a king cannot 
lawfully take possession of Indian lands without Indian consent. 
49. (1853) 16 How. 203. 



5. Indian Titles vs. Homesteaders: Holden v. Joy. 50 

The contention that Indian lands are public lands subject to disposition 
as such, a contention which the Court had squarely rejected in Worcester 
v. Georgia, Mitchel v. United States, and Chateau v. Molony, was again 
made, in a somewhat novel guise, in Holden v. Joy, and was again re- 
jected by the Court. In this case the defendant, Joy, claimed under cer- 
tain Indian treaties, while the plaintiff, Holden, claimed under preemp- 
tion acts of Congress. On behalf of the plaintiff's claim it was argued that 
the Constitution expressly vests in Congress control over public property 
and that a series of treaties made by the President and Senate with Indian 
tribes could not constitutionally dispose of public land to the defendant 
in a manner that conflicted with modes of public land disposition pre- 
scribed by Congress and availed of by the plaintiff. The Court, in re- 
jecting that argument, and holding for the defendant, pointed out that 
the occupancy right in the land in question had been in the Indians 
from the start and was therefore clearly subject to disposition by Indian 

In upholding the Indian title as a proper subject of treaty-making, the 
Court characterized aboriginal title in these terms: 

Enough has already been remarked to show that the lands con- 
veyed to the United States by the treaty were held by the Cherokees 
under their original title, acquired by immemorial possession, com- 
mencing ages before the New World was known to civilized man. 
Unmistakably their title was absolute, subject only to the preemp- 
tion right of purchase acquired by the United States as the successors 
of Great Britain, and the right also on their part as such successors 
of the discoverer to prohibit the sale of the land to any other gov- 
ernments or their subjects, and to exclude all other governments 
from any interference in their affairs, (p. 244) 

6. Indian Title and Railroad Grants: Buttz v. Northern 
Pacific Railroad. 51 

Buttz v. Northern Pacific R.R. is the first of the railroad grant cases in 
which the principles enunciated in Johnson v. Mclntosh and Worcester 
v. Georgia were applied to the transcontinental railroads that sought 

50. (1872) 17 Wall. (84 US.) 411. 

51. (1886) 119 U.S. 55. 



passage across Indian lands. Notwithstanding the vital importance of 
these railroads for the expanding national economy, and the strong 
legislative backing which the railroads commanded, Congress when it 
gave millions of acres of public land to the railroads in aid of construc- 
tion scrupulously respected Indian possessions, whether or not such pos- 
sessions had been defined by treaty or act of Congress. The statutory grant 
in the Buttz case 52 safeguarded Indian rights in these words: "The 
United States shall extinguish, as rapidly as may be consistent with public 
policy and the welfare of the said Indians, the Indian titles to all lands 
falling under the operation of this act, and acquired in the donation to 
the [road] named in this bill." Other railroad grants even went so far as 
to provide expressly that such extinguishment of Indian title should be 
effected only by "voluntary cession." 53 

The interpretation of these grants in the Buttz case and succeeding 
cases adhered to the principle that while a grant of land in Indian pos- 
session may convey a legal fee, such a grant does not impair the Indian 
title, which the grantee must respect until it has been duly terminated 
by treaty, agreement, or other authorized action of Congress or the In- 
dians. Applying this rule in the Buttz case meant that the title originally 
conveyed to the railroad by the Congressional grant of 1864 and per- 
fected by Indian relinquishment of the land in 1873, for an agreed com- 
pensation, prevailed over a settler's preemption title under the act of 
September 4, 1841, 5 Stat. 453, alleged to have been perfected by actual 
settlement in 1871. The basis of the Court's decision lay in the deter- 
mination that "At the time the act of July 2, 1864, was passed the title 
of the Indian tribes was not extinguished" (p. 66), that this was still the 
situation in 1871, and that, "The grant conveyed the fee subject to this 
right of occupancy" (ibid.). 

It is to be noted that the Indians' right of occupancy in 1864 had not 
yet been defined by any treaty. In 1867 a reservation was set aside for 
the Indians involved, but the Court noted that this did not of itself wipe 
out aboriginal possessory rights outside of the reservation. The aboriginal 
Indian title in the area involved in the Buttz case never was defined in 
any treaty or agreement until the agreement of 1873 by which the land 
was ceded to the United States. The Buttz case stands, therefore, as a 
clear warning that neither settlers nor railroads can ignore aboriginal 
Indian title. 

52. Act of July 2, 1864, 13 Stat. 365, sec. 2. 

53. Act of July 27, 1866, 14 Stat. 292, construed in United States v. Santa Fe Pacific 
Ry. Co., (1941) 314 U.S. 339, considered supra note u 


7. Individual Indian Titles vs. The Railroads: 
Cramer v. United States. 5 * 

The Cramer case, which has already been discussed, 55 is important in 
the development of the law of Indian title in two respects: (i) it estab- 
lishes the proposition that individual and tribal possessory rights are 
entitled to equal respect, and (2) it qualifies the suggestion in the Buttz 
case (p. 71) that "Indians having only a right of occupancy" do not have 
such "claims and rights" as suffice to exclude lands entirely from a public 
grant. 56 In the Buttz case this dictum was entirely justified since the 
grant act in question provided that the Indian possession should not be 
disturbed by a grant of naked legal title. But where, as in the Cramer 
case, there was no such express guaranty, the only way to protect the 
Indian title was to hold that land under Indian title was wholly ex- 
cluded from the grant. And this the Court did. Taken together, the Buttz 
and Cramer cases hold that Indian title survives a railroad grant, either 
as an encumbrance upon the grant (Buttz) or as an exception carved out 
of it (Cramer). In either case the grantee cannot interfere with the In- 
dian title. 

8. The Scope of Indian Title: United States v. 
Shoshone Tribe. 57 

Whether original Indian title comprises all elements of value attached to 
the soil or whether such title extends only to such surface resources as 
the Indians knew and used was the central question decided in the 
Shoshone case. While the case involved a treaty, the treaty was silent on 
the question of whether the "lands" which were reserved to the Indians 
included the timber upon, and the minerals below, the surface. The argu- 
ment of the case therefore turned primarily on the extent of the Indian 
tenure prior to the treaty. The Government, represented by Solicitor 
General Reed, argued that the Shoshones had a mere right of occupation, 
which was "limited to those uses incident to the cultivation of the land 
and the grazing of livestock," and that the Government had an "absolute 

54. (1923) 261 U.S. 219. 

55. See supra pp. 274-77. 

56. This dictum provided the main line of argument for the railroad in the Cramer 
case. See 261 U.S. 219, 220. 

57- (1938) 3<>4 U.S. in. 



right to reserve and dispose of the [other] resources as its own." 58 This 
view was further developed in the Government's main brief, signed by 
Solicitor General Jackson, urging that original Indian title was something 
sui generis, comprising only a "usufructuary right," and that such right 
"to use and occupy the lands did not include the ownership of the 
timber and mineral resources thereon." 59 This view was considered and 
rejected by the Court, Mr. Justice Reed dissenting. 60 The Court took the 
view that original Indian title included every element of value that 
would accrue to a non-Indian landowner. It concluded that the treaty did 
not cut down the scope of the title of the Indians, "undisturbed posses- 
sors of the soil from time immemorial/' and declared: 

For all practical purposes, the tribe owned the land. . . . The 
right of perpetual and exclusive occupancy of the land is not less 
valuable than full title in fee. . . . 

Although the United States retained the fee, and the tribe's right 
of occupancy was incapable of alienation or of being held other- 
wise than in common, that right is as sacred and as securely safe- 
guarded as is fee simple absolute title. Cherokee Nation v. Georgia, 
5 Pet. i, 48. Worcester v. Georgia, supra, 580. Subject to the condi- 
tions imposed by the treaty, the Shoshone Tribe had the right that 
has always been understood to belong to Indians, undisturbed pos- 
sessors of the soil from time immemorial, (pp. 116-117) 

At the same session of court the Supreme Court applied the identical 
rule, in the case of the Klamath Indians, 61 to Indian ownership of timber. 
The Klamath and Shoshone cases, taken together, overturned prevailing 
views as to the ownership of timber on Indian reservations. Earlier de- 
cisions of the Supreme Court in United States v. Cook, 62 and Pine River 
Logging Co. v. United States?* to the effect that the Federal Government 
could replevin logs sold without authority or recover the value thereof, 

58. Brief for United States on petition for certiorari. 

59. Brief for United States, pp. 7-24. 

60. While Mr. Justice Reed was the sole dissenter from the decision in the Sho- 
shone case, he was joined by Justices Burton and Rutledge in a more recent dissent, 
involving substantially the same contention that Indians are "like paleface squatters 
on public lands without compensable rights if they are evicted." United States v. 
Tillamooks, (1946) 329 U.S. 40, 58. 

61. United States v. Klamath Indians, (1938) 304 U.S. 119; same case, (1935) 296 
U.S. 244- 

62. (1873) 19 Wall. 591. 

63. (1902) 186 U.S. 279. 



had been widely misconstrued as a denial of Indian rights to timber. 64 
When this misinterpretation was set at rest in the Shoshone and Klamath 
cases, Congress ordered that the proceeds of the judgment in the Pine 
River case, which had been deposited to the credit of the Government, 
should be transferred to the credit of the Indians. 65 These two decisions 
delivered a death blow to the argument that aboriginal ownership extends 
only to products of the soil actually utilized in the stone age culture of 
the Indian tribes. 

9. Indian Title vs. Administrative Officials: United States as 
Guardian of Hualpai v. Santa Fe Pacific Railroad Co. 66 

The main facts and the issues of the Walapai case have already been 
noted. 67 The significance of the case in the development of the law of 
Indian title lies not in the recognition that Indian title does not depend 
upon treaties nor even in the fact that the doctrine of original Indian 
title was applied to the Mexican cession area both principles are estab- 
lished in earlier decisions, e.g. in the Cramer case. More important is the 
fact that the aboriginal occupancy of an Indian tribe was here held to 
have survived a course of congressional legislation and administrative 
action that had proceeded on the assumption that the area in question 
was unencumbered public land. The decision thus stands as a warning 
to purchasers of real property from the Federal Government, reminding 
them that not even the Government can give what it does not possess. 

10. Indian Title vs. The Federal Government: United States v. 
Alcea Band of Tillamooks. 68 

The last large gap in the doctrine of original Indian title was filled in by 
the Supreme Court's decision in the Alcea case, holding that the Federal 
Government was bound to pay the Indians when it took from them lands 
which they held under aboriginal ownership. 69 While the disagreements 

64. See 29 Op. Att'y Gen. 239 (1911). And see F. S. Cohen, Handbook of Federal 
Indian Law, pp. 313-16. The Government's brief in the Shoshone case, incorporated 
by reference in its Klamath brief, placed chief reliance upon this interpretation of 
the Cook and Pine River Logging Co. cases. 

65. Act of June 5, 1938. 52 Stat. 688. 

66. (1941) 314 US. 339. 

67. See supra pp. 277-78. 

68. (1946) 329 U.S. 40, aff'g (1945) 103 Ct. Cls. 494, 59 F. Supp. 934. 

69. That no such liability arises when land not subject to original Indian title is 
set aside temporarily for Indian use and then restored to the public domain is the 



that split the Court three ways in its opinion-writing make it dangerous 
to rely on anything the Court said in this case, the fact stands out that 
the United States, after taking land, by Congressional act, from Indians 
who had nothing more than an unrecognized aboriginal title to it, was 
required, by a five to three vote of the Supreme Court, to pay the Indians 
the value of the land so taken. Certainly it can make no difference to 
the Indians in the case whether, as Justice Black thought, they are to be 
paid because Congress passed a jurisdictional act allowing them to bring 
suit, or, as the four other justices in the majority thought, and as the 
Court of Claims thought, because the action of Congress a century ago 
established a liability which only came before the Court for adjudication 
in 1947. The question of whether rights depend upon remedies or vice 
versa is a metaphysical issue on which lawyers have disagreed for at least 
two thousand years, and it is scarcely likely that unanimity will be reached 
in the next two thousand years. As long as the Indian gets paid for 
aboriginal holdings that the government takes from him, he will not 
quibble about the reasons assigned for the decision. 70 

The difference between Justice Black's formulation of the rule of 
liability and that of the other four justices of the majority is not likely 
to affect any actual decisions. 71 The Indian Claims Act of August 13, 

holding of two recent cases. Sioux Tribe v. United States, (1942) 316 U.S. 317; Ute 
Indians v. United States, (1947) 330 U.S. 169. The language and circumstances of the 
Executive orders setting up Indian reservations vary so widely that generalizations 
from cases interpreting such orders are of little value. See F. S. Cohen, Handbook of 
Federal Indian Law, pp. 299-302. 

70. The meaning of the decision, from the standpoint of actual administration, is 
thus set forth in the statement of Commissioner of Indian Affairs William A. Brophy: 

"The Supreme Court has now held that original Indian title even though not ac- 
companied by notary seals and ribbons is as good as any white man's title. It is good 
against the United States as well as against third parties. Under recent legislation 
opening the courts to Indian grievances, the Indians are held entitled to recover the 
value of any land that has been taken away from them by the Goverment. This means 
the end of a long-standing discrimination which made Indian land in the old days 
a prey to all sorts of land-grab schemes and denied the Indians any redress or com- 
pensation. It is the duty of all employees of the Office of Indian Affairs to see that 
Indian land ownership is respected to the same degree as any other form of land 
ownership. As the Supreme Court has said, whether a tract of land 'was properly 
called a reservation ... or unceded Indian country ... is a matter of little moment 
... the Indians' right of occupancy has always been held to be sacred; something 
not to be taken from him except by his consent, and then only upon such consideration 
as should be agreed upon/" 

71. It did affect the decision in Northwestern Bands of Shoshone Indians v. United 
States, (1945) 324 U.S. 335. There a majority of the Court thought that the jurisdic- 
tional act did not authorize a suit based on aboriginal title. A four-way split in the 



1946 72 establishes a special forum to hear Indian claims and among the 
claims assigned to this forum for determination are claims based upon 
a taking of land held under original Indian title. 73 The same act also 
provides for future determination of similar claims by the Court of 
Claims. 74 Since all five members of the majority in the Alcea case agreed 
that the combination of (i) an uncompensated taking, and (2) a proper 
jurisdictional act, jointly, provided a basis for recovery, and since the 
second condition has been satisfied by general legislation, it follows that, 
under the Alcea decision, if there has been an uncompensated taking, a 
recovery may now be had. For reasons already noted, the areas within 
which such recoveries may be had are nowhere near as great as has been 
commonly supposed, even by some of the Supreme Court justices when 
they comment upon matters not of record in the case before them. 75 

The Alcea case gives the final coup de grace to what has been called the 
"menagerie" theory of Indian title, 76 the theory that Indians are less 
than human and that their relation to their lands is not the human rela- 
tion of ownership but rather something similar to the relation that 
animals bear to the areas in which they may be temporarily confined. 
The sources of this "menagerie" theory are many and varied and some- 
times elegantly pedigreed. There is the feudal doctrine, which has seldom 
been heard in this country for a century or so except in Indian cases, 
that ultimate dominion over land rests in the sovereign. There is the 
echoing of a doctrine that taking land from another nation by the sword 
creates no justiciable rights a doctrine that might have been proper 
enough when the United States was waging war or making treaties with 
the various Indian tribes, but is hardly relevant to the contemporary 
scene, when all Indians are citizens and when Congress has provided that 
these citizens should be fully compensated for confiscated lands that they 

Court produced an affirmance of the decision of the Court of Claims below, denying 
recovery. The limitations of the Shoshone jurisdictional act have now been superseded 
by the Indian Claims Act, which was passed, very largely, to overcome the injustices 
which resulted from the Shoshone decision, injustices pointed out by two of the 
justices (Black and Jackson, JJ.) voting with the majority in that case. The Senate 
and House Committees which asked the Supreme Court to allow the Indians a re- 
hearing in this case, and were refused, saw to it that the Indian Claims Act allowed 
such rehearings in all cases heretofore dismissed for jurisdictional reasons. See F. S, 
Cohen, "Indian Claims" [above, p. 264]. And see K. J. Selander, "Section 2 of the 
Indian Claims Commission Act," (1947) 15 Geo. Wash. L. Rev. 388, 422. 

72. (1946) 60 Stat. 1049, 25 U.S.CA. (1946 Supp.) 70. 

75. See sec. 2, 60 Stat. 1049, i5 2 5 U.S.C.A. (1946 Supp.) 7oa. 

74. See sec. 24, 60 Stat. 1049, 1055, 28 U.S.CA. (1946 Supp.) 2593. 

75. See note 13 supra. 

76. See F. S. Cohen, Handbook of Federal Indian Law, p. 288, 



would own today if the Federal Government had carried out the "fair 
and honorable dealings" that it first pledged in 1787. 

There are other subtler sources of the "menagerie" theory of Indian 
reservations which are seldom set forth in legal briefs but exert a deep 
influence on public administration. One of the most insidious of these 
is the doctrine that the only good Indian is a dead Indian, whence it 
follows, by frontier logic, that the only good Indian title is one that has 
been extinguished, through transfer to a white man or a white man's 
government. And finally there is the more respectable metaphysical doc- 
trine that since government is the source of all rights there are no rights 
against the government, from which it may be deduced that Indians who 
have been deprived of their possessions by governmental action are with- 
out redress. All these doctrines, it may be hoped, have been finally con- 
signed to the dust bins of history by the course of decisions of the Su- 
preme Court that cumulates in the Alcea case. 

That course of decisions now fully justifies the statement made by 
President Truman some months before the Alcea decision was handed 
down, on the occasion of his signing the Indian Claims Act on August 
13, 1946: 

This bill makes perfectly clear what many men and women, here 
and abroad, have failed to recognize, that in our transactions with 
the Indian tribes we have at least since the Northwest Ordinance of 
1787 set for ourselves the standard of fair and honorable dealings, 
pledging respect for all Indian property rights. Instead of confiscat- 
ing Indian lands, we have purchased from the tribes that once 
owned this continent more than 90 per cent of our public domain, 
paying them approximately 800 million dollars in the process. It 
would be a miracle if in the course of these dealings the largest real 
estate transaction in history we had not made some mistakes and 
occasionally failed to live up to the precise terms of our treaties and 
agreements with some 200 tribes. But we stand ready to submit all 
such controversies to the judgment of impartial tribunals. We stand 
ready to correct any mistakes we have made. 


Indian Self-Government 

NOT ALL who speak of self-government mean the same thing by the term. 
Therefore let me say at the outset that by self-government I mean that 
form of government in which decisions are made not by the people who 
are wisest, or ablest, or closest to some throne in Washington or in 
Heaven, but, rather by the people who are most directly affected by the 
decisions. I think that if we conceive of self-government in these matter- 
of-fact terms, we may avoid some confusion. 

Let us admit that self-government includes graft, corruption, and the 
making of decisions by inexpert minds. Certainly these are features of 
self-government in white cities and counties, and so we ought not to be 
scared out of our wits if somebody jumps up in the middle of a discussion 
of Indian self-government and shouts "graft" or "corruption." 

Self-government is not a new or radical idea. Rather, it is one of the 
oldest staple ingredients of the American way of life. Many Indians in 
this country enjoyed self-government long before European immigrants 
who came to these shores did. It took the white colonists north of the Rio 
Grande about 170 years to rid themselves of the traditional European 
pattern of the divine right of kings or, what we call today, the long arm 
of bureaucracy, and to substitute the less efficient but more satisfying 
Indian pattern of self-government. South of the Rio Grande the process 
took more than three centuries, and there are some who are still skeptical 
as to the completeness of the shift. 

This is not the time and place to discuss the ways in which the Indian 
pattern of self-government undermined the patterns which the colonists 
first brought to this country, patterns of feudalism, landlordism and 
serfdom, economic monopoly and special privilege, patterns of religious 
intolerance and nationalism and the divine right of kings. It was not 
only Franklin and Jefferson who went to school with Indian teachers, like 
the Iroquois statesman Canasatego, to learn the ways of federal union and 
democracy. It was no less the great political thinkers of Europe, in the 
years following the discovery of the New World, who undermined ancient 

Published in The American Indian, 1949. 



dogmas when they saw spread before them on the panorama of the 
Western Hemisphere new societies in which liberty, equality, and frater- 
nity were more perfectly realized than they were realized in contem- 
porary Europe, societies in which government drew its just powers from 
the consent of the governed. To Vitoria, Grotius, Locke, Montaigne, 
Montesquieu, Voltaire, and Rousseau, Indian liberty and self-government 
provided a new polestar in political thinking. But, for the present, I 
want merely to emphasize that Indian self-government is not a new or 
radical policy but an ancient fact. It is not something friends of the In- 
dians can confer upon the Indians. Nobody can grant self-government to 
anybody else. We all recall that when Alexander was ruler of most of the 
known civilized world, he once visited the philosopher Diogenes, who 
was making his home in an old bathtub. Diogenes was a rich man because 
he did not want anything that he did not have. He was a mighty man be- 
cause he could master himself. Alexander admired Diogenes for these 
qualities, and standing before him said, "Oh, Diogenes, if there is any- 
thing that I can grant you, tell me and I will grant it." To which Diogenes 
replied, "You are standing in my sunlight. Get out of the way." The 
Federal Government which is, today, the dominant power of the civilized 
world cannot give self-government to an Indian community. All it can 
really do for self-government is to get out of the way. 

In the history of Western thought, theologians, missionaries, judges, 
and legislators for 400 years and more have consistently recognized the 
right of Indians to manage their own affairs. Nothing that we could say 
today in defense of Indian rights of self-government could be as eloquent 
as the words of Francisco de Vitoria in 1532 or of Pope Paul III in 1537 
or of Bartholomew de las Casas in 1542 or of Chief Justice Marshall in 
1832. For 400 years, men who have looked at the matter without the 
distortions of material prejudice or bureaucratic power have seen that 
the safety and freedom of all of us is inevitably tied up with the safety 
and freedom of the weakest and the tiniest of our minorities. This is not 
novel vision but ancient wisdom. 

What gives point to the problem in 1949 is that after 422 years of 
support for the principle of Indian self-government, in the thinking of 
the western world, there is so little Indian self-government. Here we 
have, I think, the main problem on which I should like to throw the light 
of a few concrete examples and incidents. 

I recall very vividly in 1934 working on a study for the Indian Office 
of legal rights of Indian tribes which was to serve as a guide in the draft- 
ing of tribal constitutions under the Wheeler-Howard Act. I found that 



the laws and court decisions clearly recognized that Indian tribes have 
all the governmental rights of any state or municipality except in so far 
as those rights have been curtailed or qualified by Act of Congress or by 
treaty, and such qualifications are relatively minor, in fact. When, at 
last, my job was done and the Solicitor's opinion had been reviewed and 
approved by the proper authorities of the Interior Department and 
properly mimeographed, I learned to my dismay that all copies of the 
opinion in the Indian Office had been carefully hidden away in a cabinet 
and that when an Indian was found reading this opinion, the copy was 
forthwith taken from his hands and placed under lock and key. In- 
cidentally, the Indian whose reading was thus interrupted had spent 
more years in school and college than the men who controlled the lock 
and key. The Indian Office was sure that the opinion, if released to the 
public, would be most disturbing. I suppose they were right. The opinion 
was disturbing to the Indian Office. Its suppression was equally disturbing 
to me. My despondency was somewhat relieved when I found that Chief 
Justice Marshall and Pope Paul III and Bartholomew de las Casas had 
all received the same treatment. It was of John Marshall's decision up- 
holding the rights of self-government of the Cherokee Tribe that an old 
Indian fighter in the White House, President Jackson, said, "John Mar- 
shall has made his decision. Now let him enforce it." The sovereign 
State of Georgia paid no attention to the decision of the United States 
Supreme Court and the good missionary whom the Supreme Court had 
freed continued to languish in a Georgia prison. And what happened to 
John Marshall in 1832 was not novel. The same thing happened to 
Bartholomew de las Casas 300 years earlier when, as Archbishop of 
Chiapas, he endeavored to read to his flock of Spanish landowners the 
guarantees of Indian freedom signed by the Pope and by the King of 
Spain. He was not allowed to read these documents by the outraged land- 
owners of his archdiocese. In fact, he was driven from his church. History 
has a strange way of repeating itself. I was relieved to find myself in such 
good company, and so, instead of resigning, I distributed copies of the 
opinion where I thought they would do the most good. 

How can we explain the fact that despite all the respect and reverence 
shown to the principle of Indian self-government across four centuries, 
there is so little left today of the fact of Indian self-government? How 
can we explain this discrepancy between word and deed? 

The simplest explanation, of course, and the one that is easiest for 
simple, unsophisticated Indians to understand is the explanation in terms 
of white man's hypocrisy. 



I think we must go deeper into the wellsprings of human conduct and 
belief to understand what is happening in the field of Indian self-gov- 
ernment and to relate facts to words. 

Double-talk is not always a sign of hypocrisy. Probably the easiest way 
of maintaining consistency in our principles is to have a second-string 
substitute vocabulary to use in describing any facts that do not fit into 
the vocabulary of our professed principles. Thus, if we believe in liberty 
and find that some particular exercise of liberty is annoying, we may call 
that license, rather than liberty. So it is possible to talk about the virtues 
and values of self-government without allowing this talk to influence our 
conduct in any way, if we have a substitute vocabulary handy which will 
permit us to dismiss the appeal for self-government in any concrete case, 
without using the term "self-government." The second vocabulary to 
which professed believers in self-government continually turn when con- 
crete cases arise is the vocabulary that talks about "a state within a state," 
"segregation," and, in the words of the Hoover Report, "progressive 
measures to integrate the Indians into the rest of the population as the 
best solution of 'the Indian problem/ " 

There are two answers to this double-talk: One is to deny the cliches 
and to insist that there is nothing wrong about having a state within a 
state; that, in fact, this is the whole substance of American federalism and 
tolerance. We may go on to say that the right of people to segregate them- 
selves and to mix with their own kind and their own friends, is a part of 
the right of privacy and liberty, and that the enjoyment of this right, the 
right to be different, is one of the most valuable parts of the American 
way of life. We may say further that it is not the business of the Indian 
Bureau or of any other federal agency to integrate Indians or Jews or 
Catholics or Negroes or Holy Rollers or Jehovah's Witnesses into the rest 
of the population as a solution of the Indian, Jewish, Negro, or Catholic 
problem, or any other problem; but that it is the duty of the federal gov- 
ernment to respect the right of any group to be different so long as it 
does not violate the criminal law. 

Apart from this challenging of cliches, there is a second cure for the 
habit of double-talk in our discussions of Indian self-government. That 
remedy is to reject what Stuart Chase called "the tyranny of words" and 
to think facts. 

The great American philosopher, Ralph Barton Perry, coined the 
phrase, "the egocentric predicament" to call attention to the fact that each 
of us is at the center of his world and cannot help seeing the world 
through his own eyes and from his own position. It takes a certain amount 
of sophistication to realize that the vision of others who see the world 



from different perspectives is just as valid as our own. One of the striking 
features of the administrative or bureaucratic mind is that it lacks such 
sophistication. Thus, it often turns out that the officials who have most 
to say in praise of Indian self-government have a certain blind spot where 
Indian self-government comes close to their own activities. 

I recall that when we were helping Indians draft the constitutions and 
charters which were supposed to be the vehicles of self-government under 
the Wheeler-Howard Act, all of the Indian Bureau officials were very 
strongly in favor of self-government, and in favor of allowing all tribes 
to exercise to the full extent their inherent legal rights. There was only 
one difficulty. The people of the Education Division were in favor of 
self-government in forestry, credit, leasing, law and order, and every 
other field of social activity except education. Of course, education, they 
thought, was a highly technical matter in which tribal council politics 
should have no part. Education should be left to the experts, according 
to the experts, and the experts were to be found in the Education Divi- 
sion. Similarly, with the Forestry Division. They were all in favor of self- 
government with respect to education, credit, agricultural leases, law and 
order, and everything else except for forestry. Forestry, of course, in- 
volved matters of particular complexity and difficulty in which the experts 
ought to make the decisions, and the experts, of course, were to be found 
in the Forestry Division. So it was with the Credit Section, the Leasing 
Section, the Law and Order Division, and all the other divisions and 
subdivisions of the Indian Bureau. The result was that while every 
official was in favor of self-government generally, by the same token he 
was opposed to self-government in the particular field over which he had 
any jurisdiction. In that field he could see very clearly the advantages of 
the expert knowledge which he and his staff had accumulated, and the 
disadvantages of lay judgment influenced by so-called political considera- 
tions which would be involved in decisions of local councils. 

Those of us in the Department who had been given a special responsi- 
bility for protecting Indian tribal self-government finally went to the 
Commissioner and pointed out that if we followed the traditional prac- 
tice of yielding to each expert division on the matters with which it was 
concerned, there would be no Indian self-government. There was a long 
and bloody argument and eventually the Commissioner upheld the prin- 
ciple which is now written into most Indian tribal charters, that the In- 
dians themselves, at some point or other, may dispense with supervisory 
controls over most of their various activities. Some of the charters include 
a special probationary period of five years or ten years, during which 
leases and contracts are subject to Departmental control. In many cases, 



particularly among the Oklahoma tribes, this period has terminated and 
the Indians are free, if they choose to do so, to make their own leases and 
contracts and various other economic decisions without Departmental 
control. That, at least, is what the charters and constitutions say. 

Yet I must add that instances have been called to my attention where 
decisions and ordinances that were not supposed to be subject to review 
by superintendents or by the Commissioner of Indian Affairs have been 
rescinded or vetoed by these officials. Tribes without independent legal 
guidance frequently acquiesce in such infringements upon their con- 
stitutional and corporate powers. Thus many of the gains of the Roosevelt 
era are being chipped away. 

Let me give one more instance of the egocentric predicament in action. 
A certain Southwestern superintendent recently wrote an eloquent article 
in defense of Indian self-government, and in support of the idea that the 
Indian Bureau should work itself out of its job. A few weeks later some 
of the tribes under his jurisdiction decided that they needed legal assist- 
ance and proceeded to employ attorneys to help them handle their own 
leasing, grazing and social security problems. At this point all sorts of 
reasons began to occur to the superintendent why the tribes under his 
agency should not be allowed to select their own attorneys. In fact, for 
many months, as fast as one of his objections was met another objection 
occurred to him. 

Here is a superintendent who is doing the best thing, as he sees it, for 
his Indians. He is, I believe, entirely sincere. Recently he explained that 
if one of these attorney contracts were approved he would be out of a 
job, so far as this particular tribe was concerned. Now you will recall that 
this is the same superintendent who wrote an article urging that the In- 
dian Bureau work itself out of a job. But when the matter came to an 
issue in concrete terms affecting his own job, he saw the question in a 
different light. That is only human. That is a part of the egocentric pre- 
dicament. And it is that predicament which makes the adherents and 
defenders of self-government so much more dangerous to the cause of In- 
dian self-government than any outright adversaries. If self-government 
were a man it might repeat, "God preserve me from my friends. I can 
take care of my enemies." 

Unfortunately, it is not the tribal decisions which we agree with that 
test our belief in the right of self-government. It is decisions that we 
loathe and believe to be fraught with death that test our beliefs in tribal 
self-government, just as it is religious opinions, that we loathe and be- 
lieve to be fraught with death that test our. belief in religious tolerance. 
But it takes a vast amount of sophistication or philosophy to say what 



Justice Holmes once said, "I think we should be eternally vigilant against 
attempts to check the expression of opinion that we loathe and believe to 
be fraught with death/' Allowing others to express opinions we agree 
with is no test at all of our belief in free speech. To quote again from 
Justice Holmes: "But when men have realized that time has upset many 
fighting faiths, they may come to believe even more than they believe in 
the very foundations of their own conduct, that the ultimate good desired 
is better reached by free trade in ideas." 

May we not profit, may not the world profit, if in a few places in our 
Western Hemisphere there is still freedom of an aboriginal people to try 
out ideas of self-government, of economics, of social relations, that we 
consider to be wrong? After all, there are so many places all over the 
world where we Americans can try out the ideas of economics and gov- 
ernment that we know to be right. Is there not a great scientific advantage 
in allowing alternative ideas to work themselves out to a point where 
they can demonstrate the evils that we believe are bound to flow from a 
municipal government that maintains no prisons, or from a government 
that gives land to all members of the group who need it? Are we not 
lucky that the areas within which these governmental ideas can work 
from themselves out are so small that they cannot possibly corrupt the 
nation or the world? 

Indeed, is there not a possibility that we can learn from example 
horrible examples, perhaps, or perhaps examples to be emulated? Have 
we not been learning from Indian examples for a good many years? Have 
we not been taking over all sorts of horrifying Indian customs, disrespect 
for kings and other duly appointed authorities, the smoking of poisonous 
weeds, like tobacco, and the eating of poisonous plant products, like 
tomatoes, potatoes, tapioca, and quinine, not to mention cocoa and 
cocaine? Of course, we must all of us start with the assumption that we 
are right or as near being right as we can be. But can we not also rec- 
ognize, with Justice Holmes, that time has upset many fighting faiths, 
and that even if we are possessed of absolute truth it is worthwhile to 
have somebody somewhere trying out a different idea? 

Just as serious as the habit of double-talk or the egocentric predicament 
is the method of procrastination as a way of avoiding the concrete implica- 
tions of Indian self-government. On May 20, 1834, not 1934 but 1834, the 
House Committee on Indian Affairs reported that a large part of the 
activity of the Indian Bureau was being carried on in violation of law 
and without any statutory authority. It urged that the Indian Bureau 
work itself out of a job by turning over the various jobs in the Bureau 
itself to the Indians and by placing the Indian Bureau employees on the 


various reservations under the control of the various Indian tribes. These 
recommendations were written into law. They are still law. The justice 
of these recommendations has not been challenged for 115 years. But 
always the answer of the Indian Bureau is: Give us more time. We must 
wait until more Indians have gone to college, until the Indians are rich, 
until the Indians are skilled in politics and able to overlook traditional 
jealousies, until the Indians are experts in all the fields in which the 
Indian Bureau now employs experts. But we are never told how the In- 
dians are to achieve these goals without participation in their own gov- 
ernment. And so perhaps some of us are entitled to look with a skeptical 
eye upon the new legislative proposals by which the Indian Bureau is 
to work itself out of a job after the usual interim 10 year or 20 year 
period of increased appropriations. 

What provokes skepticism is the fact that the various bills which are 
being introduced into Congress to achieve this objective generally end 
up by giving new powers and new millions of dollars not to the Indian 
tribal councils but to the Indian Bureau. And when we find that specific 
dates are not attached to any promised transfers of power to the tribes, 
we are entitled to be skeptical. The record shows that for more than one 
hundred years the aggrandizement of Indian Bureau power has been 
justified on the ground that this was merely needed for a brief temporary 
period until authority could be conveyed over to the Indians themselves. 

Indian Bureau government, like other forms of colonialism, starts 
from the basic premise that government is a matter of knowledge or wis- 
dom. If we accept this basic premise, there is no answer to the aristocratic 
argument of Alexander Hamilton that government should be handled 
by the rich, the well born, and the able. If it be said that rich people 
and well born people are not necessarily able, the obvious answer is that 
those who are rich or well born are at least more likely to have expert 
knowledge, training, and experience than those who are poor or the 
children of poor families, and that in government we must proceed by 
general rules, under which it is safe to say that the rich, the well born, 
and the able will do a more expert job than others in the posts of gov- 
ernment. One of the greatest of our Secretaries of the Interior, also, like 
Hamilton, an immigrant from lands that worshipped empire, Carl Schurz, 
once said to an Indian group that was inclined to object to the activities 
of some local agency personnel: "The Great Father is a very wise man. He 
knows everything. If there is anything wrong with your agent, he will 
know it before either you or I know it." 

I think that if government were merely a matter of wisdom and expert 



knowledge, the argument of Carl Schurz and Alexander Hamilton would 
be irrefutable. The answer to Schurz and to Hamilton is that govern- 
ment is not a science; it is not primarily a matter of wisdom or technique 
or efficiency. Government is a matter chiefly of human purpose and of 
justice, which depends upon human purpose. And each of us is a more 
faithful champion of his own purposes than any expert. The basic prin- 
ciple of American liberty is distrust of expert rulers, and recognition, in 
Acton's words, that power corrupts and that absolute power corrupts 
absolutely. That is why America, despite all the lingo of the administra- 
tive experts, has insisted upon self-government rather than "good gov- 
ernment/' and has insisted that experts should be servants, not masters. 
And what we insist upon in the governing of these United States, our 
Indian fellow-citizens also like to enjoy in their limited domains: the 
right to use experts when their advice is wanted and the right to reject 
their advice when it conflicts with purposes on which we are all our own 
experts. The classical answer to the Hamilton-Schurz-Indian Bureau phi- 
losophy of "expert government" is the answer given by Thomas Jefferson 
in a letter to the Cherokee Indians in 1808. Jefferson said: "The fool has 
as great a right to express his opinion by vote as the wise, because he is 
equally free and equally master of himself." 

Recently I heard repeated the words of Nazi Admiral Doenitz, as he 
faced his judges at the conclusion of the Nuremberg Trial. The prin- 
ciple of expert leadership, he said, had proved itself in the armed forces 
as a principle of efficiency. It seemed to him that the same principle 
would prove itself in the field of government, but the results showed that 
the leadership principle in government had brought in its train only 
ghastly destruction. 

Let us hope that we will not have to wait and see, as Admiral Doenitz 
saw, what happens when self-government and minority rights are sub- 
ordinated to expert government and the leadership principle. Let us be 
thankful that in this country we have, in laboratory proportions before 
us, in proportions so small that the individual effort of half a dozen of 
us can make a real difference, this perennial conflict between democratic 
self-government and the various modern forms of aristocracy, or govern- 
ment by experts. The issue we face is not the issue merely of whether In- 
dians will regain their independence of spirit. Our interest in Indian 
self-government today is not the interest of sentimentalists or antiquar- 
ians. We have a vital concern with Indian self-government because the 
Indian is to America what the Jew was to the Russian Czars and Hitler's 
Germany. For us, the Indian tribe is the miners 1 canary and when it 



flutters and droops we know that the poison gasses of intolerance threaten 
all other minorities in our land. And who of us is not a member of 
some minority? 

The issue is not only an issue of Indian rights; it is the much larger 
one of whether American liberty can be preserved. If we fight only for 
our own liberty because it is our own, are we any better than the dog who 
fights for his bone? We must believe in liberty itself to defend it ef- 
fectively. What is my own divides me from my fellow man. Liberty, 
which is the other side of the shield of tolerance, is a social affair that 
unites me with my fellow man. If we fight for civil liberties for our side, 
we show that we believe not in civil liberties but in our side. But when 
those of us who never were Indians and never expect to be Indians 
fight for the cause of Indian self-government, we are fighting for some- 
thing that is not limited by the accidents of race and creed and birth; 
we are fighting for what Las Casas and Vitoria and Pope Paul III called 
the integrity or salvation of our own souls. We are fighting for what 
Jefferson called the basic rights of man. We are fighting for the last best 
hope of earth. And these are causes that should carry us through many 


Americanizing the White Man 

"WHAT CAN we do to Americanize the Indian?" The question was 
earnestly put by a man who was about to assume control over our coun- 
try's Indian affairs. He was appalled by the fact that over a hundred 
native tribes within the United States still speak their own languages 
and make their own laws on the little fragments of land that Indians 
reserved for their own use when they sold the rest of the country to the 
white man. The Commissioner-elect was a kind and generous soul, but 
his Anglo-Saxon pride was ruffled by the fact that so many Indians pre- 
ferred their own way of life, poor as it was, to the benefits of civilization 
that Congress longed to confer on them. Perhaps, if Indians did not 
realize that they needed more Indian Bureau supervisors and bigger and 
better appropriations to make real Americans out of them, it might be 
necessary to use a little force. 

A bronze-skinned figure in the audience arose. "You will forgive me," 
said a voice of quiet dignity, "if I tell you that my people were Americans 
for thousands of years before your people were. The question is not how 
you can Americanize us but how we can Americanize you. We have been 
working at that for a long time. Sometimes we are discouraged at the 
results. But we will keep trying. And the first thing we want to teach you 
is that, in the American way of life, each man has respect for his brother's 
vision. Because each of us respected his brother's dream, we enjoyed free- 
dom here in America while your people were busy killing and enslaving 
each other across the water. The relatives you left behind are still trying 
to kill each other and enslave each other because they have not learned 
there that freedom is built on my respect for my brother's vision and his 

Published in The American Scholar, 1952. The American Scholar stated in a foot- 
note, "Felix Cohen argued the cases that won for Indians the right to vote in those 
Western states that had formerly denied them the franchise. . . . His compilation of 
Indian Laws and Treaties and his Handbook of Federal Indian Law are standard 
reference works." The Handbook has been quoted frequently by the Supreme Court 
in Indian cases. Williams v. Lee, 358 U.S. 217, 219 (1959) is one of the most recent. In 
Squire v. Capoeman } 351 U.S. i, 8 (1956), Chief Justice Warren speaking for the 
Court referred to Felix Cohen as "an outstanding expert in Indian law." 



respect for mine. We have a hard trail ahead of us in trying to American- 
ize you and your white brothers. But we are not afraid of hard trails." 

The Commissioner-elect, in the months that followed, had repeated 
occasion to realize what lay behind these words. 

American history, written by the scribes of the conquerors, has been 
written as the story of a great European conquest. What was conquered, 
according to the European historians and their students, was an almost 
empty land, dotted here and there with wild savages. These children of 
the wilderness, unable to live alongside civilization, proceeded to dis- 
appear as their land was settled. The "vanishing Indian" became the 
theme of song and folklore, of painting and sculpture, of fiction and of 
the special sort of fiction that sometimes passes as American history. How 
far this oft-told story deviates from the truth we are only beginning to 

As yet, few Americans and fewer Europeans realize that America is not 
just a pale reflection of Europe that what is distinctive about America 
is Indian, through and through. American cigarettes, chewing gum, rub- 
ber balls, popcorn and corn flakes, flapjacks and maple syrup, still make 
European eyebrows crawl. American disrespect for the authority of par- 
ents, presidents, and would-be dictators still shocks our European critics. 
And visitors from the Old World are still mystified when they find no 
peasants on American soil. But the expressions of pain, surprise, and 
amused superiority that one finds in European accounts of the habits of 
the "crazy Americans" are not new. One finds them in European reports 
of American life that are 200 and even 400 years old. All these things, 
and many things more important in our life today, were distinctively 
American when the first European immigrants came to these shores. 

The American way of life has stood for 400 years and more as a deadly 
challenge to European ideals of authority and submissive obedience in 
family life, in love, in school, in work, and in government. For four and 
a half centuries government officials have been trying to stop Indians 
from behaving in un-European ways. Once the battle was to stop In- 
dians from bathing, smoking, and eating potatoes, all of which were sup- 
posed to be bad for their bodies and souls. In more recent years, our 
bureaucrats have issued countless orders prohibiting Indians from danc- 
ing (except after reaching the age of fifty), feasting, wearing Indian 
costumes, hunting for sport, traveling for pleasure, or otherwise engaging 
in the pursuit of happiness. Above all, they have tried to eradicate the 
Indian habit of sharing food and land with needy neighbors. The Indian 
Bureau is even now earnestly trying to implement the commandment 
once enunciated by a distinguished Commissioner of Indian Affairs: "The 



Indian must be imbued with the exalting egotism of American [rather 
European] civilization, so that he will say 'I' instead of 'we,' and 'this is 
mine' instead of 'this is ours/ " Through four centuries the Spanish, 
English, and American Indian Bureaus have tried to turn Indians into 
submissive peasants. So far they have failed. To that failure we owe much 
that is precious in our American way of life. 

As yet, only a few scholars know that the changes wrought in white life 
by Indian teachers are far more impressive even if we measure them by 
the white man's dollar yardstick than any changes white teachers have 
yet brought to Indian life. How many white fanners know that four- 
sevenths of our national farm produce is of plants domesticated or created 
by Indian botanists of pre-Columbian times? Take from the agriculture 
of the New World the great Indian gifts of corn, tobacco, white and sweet 
potatoes, beans, peanuts, tomatoes, pumpkins, chocolate, American cot- 
ton, and rubber, and American life would lose more than half its color 
and joy as well as more than half its agricultural income. Without these 
Indian gifts to American agriculture, we might still be back at the level 
of permanent semi-starvation that kept Europeans for thousands of years 
ever-ready to sell their freedom for crusts of bread and royal circuses. 
And if we lost not only the Indian's material gifts, but the gifts of the 
Indian's spirit as well, perhaps we should be just as willing as Europeans 
have keen to accept crusts of bread and royal circuses for the surrender 
of our freedom. For it is out of a rich Indian democratic tradition that 
the distinctive political ideals of American life emerged. Universal suf- 
frage for women as well as for men, the pattern of states within a state 
that we call federalism, the habit of treating chiefs as servants of the 
people instead of as their masters, the insistence that the community 
must respect the diversity of men and the diversity of their dreams all 
these things were part of the American way of life before Columbus 

Even the sole American contribution to the vocabulary of democratic 
government turns out to be a word borrowed from an Indian language. 
When Andrew Jackson popularized a word that his Choctaw neighbors 
always used in their councils to signify agreement with another speaker, 
the aristocrats he threw out of office, always grasping at a chance to 
ridicule backwoods illiteracy, accused him of abbreviating and mis- 
spelling "All Correct/' But O.K. (or okeh, in Choctaw) does not mean 
"all correct"; it means that we have reached a point where practical 
agreement is possible, however far from perfection it may lie. And that 
is an idea which is central in the American idea of government. 

When Roman legions conquered Greece, Roman historians wrote with 


as little imagination as did the European historians who have written oi 
the white man's conquest of America. What the Roman historians did 
not see was that captive Greece would take captive conquering Rome 
and that Greek science, Greek philosophy, and a Greek book known as 
the Septuagint, translated into the Latin tongue, would guide the civilized 
world and bring the tramp of pilgrim feet to Rome a thousand years 
after the last Roman regiment was destroyed. 

American historians, thinking, like their Roman forebears, of military 
victories and changing land boundaries, have failed to see that in agricul 
ture, in government, in sport, in education, and in our views of nature 
and our fellow men, it is the First Americans who have taken captive 
their battlefield conquerors. Our historians, trained for the most part in 
Germany and England, have seen America only as an imitation of 
Europe. They have not seen that American Indians today who are, 
despite the prevailing myth of the Vanishing Indian, the most rapidly 
increasing race in our land are still teaching America to solve per- 
plexing problems of land-use, education, government, and human re- 
lations, problems to which Europe never did find adequate answers. 

The real epic of America is the yet unfinished story of the Ameri- 
canization of the White Man, the transformation of the hungry, fear- 
ridden, intolerant men that came to these shores with Columbus and 
John Smith. Something happened to these immigrants. Some, to be sure, 
remained European, less hungry, perhaps, but equally intolerant and 
equally submissive to the authority of rulers and regulations. But some 
of these immigrants became Americans, tolerant and neighborly, as 
strong and self-reliant men may be, and for the same reason disrespectful 
of all authority. To such Americans, a chief who forgets that he is a 
public servant and tries to tell other people what to do has always been 
an object of ridicule. American laughter has rippled down the centuries 
and upset many thrones. And when ridicule and laughter were in- 
sufficient, there has always been American blood to finish the job and to 
conserve for future generations the blessings of liberty. 

Not always were the historians of the conqueror entirely blind to what 
was happening among the settlers of the New World. The contagion of 
the Indian's love of freedom, which defeated every attempt to establish 
Indian slavery, and quickly spread to the Indian's white neighbors, was 
noted in 1776 in a popular account of America, widely circulated in 
England: "The darling passion of the American is liberty and that in its 
fullest extent; nor is it the original natives only to whom this passion 
is confined; our colonists sent thither seem to have imbibed the same 



Something was happening to English colonists who had become ac- 
customed to the voice of authority through centuries of Tudor, Stuart, 
and Plantagenet despotism, accustomed to taking orders, backed by 
force, in the nursery and the schoolroom, in the workshop and the 
field, in the choice of dress, mate, occupation, and creed. And what was 
happening to these European colonists in the formative years of our 
growth as a nation was happening in a land where whites were a small 
minority. It was to Indian guides that European colonists had to go 
to learn how to grow corn and tobacco, how to stalk or snare American 
game, how to travel the Indian trails that laced the American wilderness. 
And it was from these same Indian guides that European colonists 
learned other lessons they had not dreamed of learning when they left 
the Old World. 

We need to remember that the Europe that lay behind Columbus 
as he sailed toward a New World was in many respects less civilized 
than the lands that spread before him. Politically, there was nothing 
in the kingdoms and empires of Europe in the fifteenth and sixteenth 
centuries to parallel the democratic constitution of the Iroquois Con- 
federacy, with its provisions for initiative, referendum, and recall, and 
its suffrage for women as well as men. Socially, there was in the Old 
World no system of old-age pensions, disability benefits, and unem- 
ployment insurance comparable to the system of the Incas. 

Of what nation, European or Asiatic, in the sixteenth century could 
one have written as the historian Prescott wrote of the Incas: "Their 
manifold provisions against poverty . . . were so perfect that in their 
wide extent of territory much of it smitten with the curse of barren- 
ness no man, however humble, suffered for the want of food and 

Out of America came the vision of a Utopia, where all men might 
be free, where government might rest upon the consent of the governed, 
rather than upon the divine right of kings, where no man could be 
dispossessed of the land he used for his sustenance. The vision that 
came to that great modern saint and legal philosopher, Thomas More, 
with the first reports he had from Amerigo Vespucci and other ex- 
plorers of the New World the vision of a democratic society in which 
a forty-hour work week left time to enjoy life, in which even the 
humblest worker could afford to have windows in his home to let in 
the sunlight this vision lived on. When More's eyes became dim on 
the tyrant's scaffold that Henry the Eighth erected for his chancellor, the 
gleam that had lightened them had become a proud possession of a 
whole generation and of many generations to follow. 



Thomas More had seen something that no tyrant and no dictatorship 
could wipe out. 

No despotism afterwards could escape the fatal comparison between 
what is and what might be. And even those who, like Adam Smith and 
Jeremy Bentham, ridiculed all Utopias, ended up by formulating Utopias 
of their own. In these and many other ways, Indian America helped to 
civilize Europe. 

To Francisco Vitoria, teacher of moral theology at the University of 
Salamanca, in 1532, reports from the New World showed the possi- 
bility of basing international dealings on reason and mutual accom- 
modation, and thus provided the foundations for an international law 
not limited by a single religious faith. And when Hugo Grotius picked 
up the threads of Vitoria's thought to weave the fabric of modern 
international law, he too was deeply influenced by Indian examples of 
just government. To John Locke, the champion of tolerance and of 
the right of revolution, the state of nature and of natural equality to 
which men might appeal in rebellion against tyranny was set not in a 
remote dawn of history but beyond the Atlantic sunset. And so, too, 
Montaigne, Montesquieu, Voltaire, Rousseau, and their various con- 
temporaries found in the democracy of native America, in the "liberty, 
equality, fraternity" of the Indians, a light for suffering humanity, a 
flame in which to burn away the dross of ancient despotisms. In the 
American Revolution, in the French Revolution, and in the revolt of 
the Spanish Colonies, the passion for liberty nourished by the Indian 
burst into consuming flame. 

On the shores of Brazil, in 1497, there was no Statue of Liberty with 
its inscribed message to Europe: "Send me your . . . struggling masses 
yearning to be free." But in almost the first report to Europe from 
the American continent, Amerigo Vespucci, shipwrecked on the coast 
of Brazil, reported on the hospitality of the natives: "Seeing that the 
aforesaid ship was rent asunder, they went out in their little boats . . . 
carried ashore the men and the munitions which were contained therein, 
with charity so great it is impossible to describe." For four centuries 
white Americans continued this tradition of hospitality toward the 
stranger, and those ports which were most hospitable became the most 

Is it any wonder that the greatest teachers of American democracy 
have gone to school with the Indian? 

Were not the first common councils of the American Colonies, the 
Council of Lancaster in 1744 and the famous Albany Congress of 1754, 
councils called for the purpose of treating with the Iroquois Con- 



federacy, whose leaders were unwilling to treat separately with the 
various quarreling Colonies? It was the great Iroquois Chief Canasatego 
who advised the Colonial governors meeting at Lancaster in 1744: 

Our Wise forefathers established Union and Amity between the Five 
Nations. This has made us formidable; this has given us great Weight 
and Authority with our neighboring Nations. We are a powerful 
Confederacy; and by your observing the same Methods, our Wise 
Forefathers have taken, you will acquire such Strength and power. 
Therefore whatever befalls you, never jail out with one another. 

The advice of Canasatego was eagerly taken up by Benjamin Franklin. 

It would be a strange thing [he advised the Albany Congress] if Six 
Nations of ignorant savages should be capable of forming a scheme 
for such an union and be able to execute it in such a manner that it 
has subsisted ages and appears indissoluble, and yet that a like 
union should be impracticable for ten or a dozen English colonies, 
to whom it is more necessary and must be more advantageous, and 
who cannot be supposed to want an equal understanding of their 

The author of the American Declaration of Independence and of 
our first bill of rights freely acknowledged his debt to Indian teachers. 
Comparing the freedom of Indian society with the oppression of Euro- 
pean society, Thomas Jefferson struck the keynote of the great American 
experiment in democracy: 

Imperfect as this species of coercion may seem, crimes axe very rare 
among them [the Indians of Virginia]; so much that were it made a 
question, whether no law, as among the savage Americans, or too 
much law, as among the civilized Europeans, submits man to the 
greatest evil, one who has seen both conditions of existence would 
pronounce it to be the last; and that the sheep are happier of them- 
selves, than under the care of the wolves. It will be said, that great 
societies cannot exist without government. The savages, therefore, 
break them into small ones. 

Here Jefferson put his finger on the quality that distinguishes Ameri- 
can attitudes toward government from continental attitudes. The caution 
against aggrandizement of governmental power, the preference for local 
self-government even though it seem less efficient, the trust in the ability 
of good neighbors to settle their own problems by mutual accommoda- 
tion without totalitarian rule these are enduring elements of our 
American democracy. 



The theory of American democracy is based upon the premise that 
self-government is better than expert government. The theory was simply 
stated by President Jefferson in his discussion with the Cherokees on 
forms of government. "The fool," he said, "has as great a right to express 
his opinion by vote as the wise, because he is equally free and equally 
master of himself." Here was an idea that, however it might have 
shocked Plato or Aristotle or Machiavelli, was not strange to the 
Cherokee chiefs. For they, like the chiefs of many other Indian tribes, 
would again and again refuse to make decisions for their people until 
the decision had been thoroughly thrashed out in the councils of the 
people and approved by majority, or, more commonly, by unanimous 
agreement. This characteristic of Indian leadership, often so annoying 
to white administrators who want swift decisions from Indian leaders, 
has been a sustaining source of strength to Indian democracy. Who shall 
say that this deference to the public will is not the greatest achievement 
of American political leadership, and the greatest lesson that the Amer- 
icas may teach to lands less free beyond the seas? 

Measurement is difficult in the realm of political theories: those ac- 
customed to the histories of the conqueror will hardly be convinced, 
though example be piled on example, that American democracy, free- 
dom, and tolerance are more American than European and have deep 
aboriginal roots in our land. But measurement is easier in the field 
of agriculture. And here the disparagers of Indian life are up against 
the hard fact that the larger part of the agricultural output of the 
United States, and of all America, consists of plants domesticated by 
the Indian. Irish potatoes, Turkish tobacco, India rubber, Egyptian 
cotton what are all these but Indian products disguised with re- 
spectable Old World names? 

Significantly enough, the products of Indian agriculture were resisted 
as bitterly in the Old World as were the ideas of democracy, liberty, 
and tolerance that floated back to Europe from the New World. The 
bitterness of this resistance is evidenced by the cut-off ears and noses of 
German peasants who for centuries refused, despite all punishments, 
to eat potatoes, and by the dire penalties inflicted from England to India 
upon smokers of tobacco. Down to recent decades the tomato, or love 
apple, was regarded by most Europeans as poisonous. Gradually a few 
of the agricultural achievements of Indian America have become ac- 
cepted by the rest of the world. But is there any reason to think that 
this process of give-and-take is at an end? The rediscovery of an old 
Indian dish, toasted corn flakes, not many years ago revolutionized the 
breakfast habits of the United States. We have just increased America's 



corn crop by 40 per cent by rediscovering the Indian preference for 
hybrid corn. 

In medicine, as in the production of food and textiles, the conven- 
tional picture of the Indian as an ignorant savage is very far from 
the truth. Until a few years ago most of America's contributions to 
medical science were of Indian origin. Quinine, cocaine, cascara sagrada, 
ipecac, witch hazel, oil of wintergreen, petroleum jelly, arnica all these 
and many other native medicines were known and developed by the 
medical profession in America long before the first white physician 
landed on American shores. In fact each of these products was de- 
nounced by learned European doctors before it became accepted into 
the normal pharmacopoeia. And it is interesting to note that in the 
400 years that European physicians and botanists have been examining 
and analyzing the flora of America, they have not yet discovered a 
medicinal herb not known to the Indians. 

These are material things that can be counted and measured. They 
constitute tangible refutation of the slander that the Indian did not 
know how to make use of his land and its resources until the white 
conqueror taught him. But to limit one's gaze to these materials is 
not only to lose sight of the intangibles of American life but even 
to miss the human significance of these material things. For corn, as 
countless Indian generations have known, is not simply a thing. It 
is a way of life. Corn, reproducing itself three hundredfold, without 
benefit of horse or plow where plowed fields of wheat or rye produce 
only twentyfold or thirtyfold is a sturdy friend of freedom. The fron- 
tiersman who would not accept a burdensome government could take 
a sack of seed corn on his shoulders into the wilderness in the spring, 
and after three months he might be reasonably assured against hunger 
for the rest of his life. No such path to freedom, no such check upon 
the growth of tyranny, was ever open to growers of wheat or rye or rice. 

Oklahoma is full of stories of the Green Corn Rebellion. But really 
the Green Corn Rebellion has been an annual event in American life 
for thousands of years. Down through the centuries, every American 
spring has seen men and women in rebellion against petty tyrannies 
and dictatorships of nation or city, hamlet or household. Independent 
souls have gone out with sacks of seed corn to win their own inde- 
pendence. Long before 1776, Americans were celebrating Independence 
Day, the green corn festival in July, when the most bountiful of all 
man-made harvests assures independence from the fear of hunger, and 
from all the other fears that hungry men acquire when they sell control 
of their lives for protection from hunger. 



"Tomahawk Rights*' and "Corn Titles" are the terms that were once 
applied to American frontier homesteads. But the tomahawk rights 
and corn titles are far older than the white man's homestead laws. 
American pioneers were following an old Indian pattern when they 
went into the wilderness, chopped down trees or girdled them with their 
tomahawks, planted their corn among the stumps, and claimed possession 
by right of use and occupancy. The whole economic history of rural 
America has been a struggle between the feudal land tenures of Europe, 
glorifying the absentee owner, the man on horseback, on the one hand, 
and on the other, the Indian land tenure, where land right is the fruit 
of use and occupancy. 

What is the great American contribution to the law of property? 
Is it not the homestead system, the grant of land rights based on use and 
occupancy, and the protection of the homestead against levy, execution, 
and taxes? Does not this represent the triumph on our soil of the Indian 
landholding pattern, just as in lands south of the Rio Grande a 
restoration of the Ejido and the breakdown of the old feudal hacienda 
system represent the long-delayed triumph of native land patterns, the 
triumph of tenure by the hoe over tenure by the sword? 

And does not the great American melodrama of the past two centuries 
faithfully celebrate the triumph of innocence and home ownership over 
the mortgage-holding villain? The hero of the melodrama has had many 
names. Most recently he has been called HOLC or FHA. But always 
the audience has cheered the right of a man to hold his own home 
against creditors, sheriffs, and villains. And the theme goes back four 
and a half centuries to Amerigo Vespucci, who reported that in America, 
where "every one is his own master," men's rights in the land they lived 
on were sacred and inalienable* 

Because the Indian attitude to land emphasized the duty of loving 
care, rather than the right to alienate or collect rents, which was the 
mark of property rights in feudal Europe, it seemed to Vespucci that 
here was no real property; and More, who incorporated whole phrases 
of Vespucci's account in his Utopia, wrote of his ideal commonwealth: 
"They count themselves rather the good husbands, than the owners of 
their lands." 1 

Even the ^ lowly Indian (Irish) potato revolutionized European his- 
tory. First, it banished the fear of hunger from millions of European 
homes. For a farm family that would starve on four acres of wheat or 
rye could thrive and multiply on an acre of potatoes. The introduction 
of the white potato resulted in an unprecedented rise in the standard of 

i. Utopia, Bk. II, 



living of Europe and the British Isles, and ultimately laid the basis for 
a great growth in population density and a vast expansion of commerce 
and industry. 

Tobacco, too, carried with it a way of life. The pipe of peace is 
an enduring symbol of the invitation to relaxation and contentment 
that makes poor men rich. 

If American agriculture today is predominantly Indian in its origin, 
may not the same be true of less tangible aspects of the life that our 
agriculture sustains? Consider, for example, the love of nature which is 
institutionalized in our athletics, in our boy scout movement, and in 
our vacation habits. In the Europe of Columbus, bathing was a sinful 
indulgence. One of Queen Isabella's first instructions to her agents who 
sought to civilize the Indians in 1503 was: "They are not to bathe as 
frequently as hitherto/' Less than 200 years ago it was a misdemeanor in 
Boston to take a bath except when prescribed by a physician. In the 
Europe of Columbus' day, group athletic contests were practically un- 
known; and the color of white paste or swansdown was an essential part, 
according to the poets, of the European aristocratic ideal of feminine 
beauty. The millions of dollars spent every year by American vacation- 
ists, men and women, on resort beaches, acquiring the golden tan of an 
Indian skin, is the best tangible evidence of the way in which the Indian's 
love of sun and water, of bodily beauty, cleanliness, and athletic prowess, 
in both sexes, has become a part of the American soul. 

"During his second visit to South America," the Encyclopedia Britan- 
nica tells us, "Columbus was astonished to see the native Indians amus- 
ing themselves with a black, heavy ball made from a vegetable gum. 
Later explorers were equally impressed by these balls, and an historian 
of the time remarked that they rebounded so much that they appeared 

What has happened to these balls? You will find them all across 
the face of America, on tennis courts and football fields, in basketball 
courts no different from the basketball courts uncovered in ancient cities 
like Mitla, in Mexican Oaxaca. You will find them in baseball parks, on 
sandlots, and on the sidewalks of our teeming cities. You will find them 
tied with rubber strings to little girls' fingers. 

The sports of pre-Columbian Europe revolved chiefly about killing 

killing of stags, bears, birds, fish, bulls, foxes, and human beings, with 
and without armor. Those sports that did not involve actual killing, 
such as archery, were at least concerned with practice for it. To this day 
a sportsman, in Europe, is one who kills for pleasure rather than for food 
or profit. Indian America substituted the rubber balls that "rebounded 



so much that they appeared alive." The Indian games out of which our 
national games have evolved are not always recognizable today, but the 
spirit of group sport and team play that was cultivated in pre-Columbian 
America still offers a peaceful outlet for combative instincts that in other 
lands find bloodier forms of expression. And millions of white tourists 
and vacationists whether or not they use such Indian inventions as 
teepees, moccasins, canoes, rubber balls, hammocks, pack baskets, tump 
lines, toboggans, and snow shoes, and whether or not they munch 
chocolate, peanuts, or popcorn, chew gum or smoke tobacco are learn- 
ing what the Indians knew centuries ago: the peace and adventure of 
the trail and the camp fire. The white man, having conquered America, 
is just beginning to learn how to enjoy it. 

Is there anything more characteristically American than the pursuit 
of happiness that is enshrined in our Declaration of Independence, in- 
stitutionalized in our national park system, our boy scout movement, our 
athletic sports, our national worship of sun and air and water? 

Acculturation, unlike assimilation, is not a one-way street. The Amer- 
ican Indian has learned many things from his white teacher. But does not 
every great teacher carry away from his students more than he brought 
to them? 

It is easier to talk about the past than about the future. But it is 
the future that really interests us, and the point that most needs making 
is that we still have much to learn from the Indian. There is still much 
that we can take from the Indian to enrich ourselves without impoverish- 
ing the Indian. We have not by any means exhausted the great harvest 
of Indian inventions and discoveries in agriculture, government, medi- 
cine, sport, education, and craftsmanship. Can we be sure that we have 
nothing to learn from the Indian techniques in law that leading Ameri- 
can legal scholars like Professor Llewellyn are finding so rich a source of 
insight for our own jurisprudence? Are we sure that we have nothing 
to learn from Indian techniques of government, techniques which in 
some tribes and pueblos have established political unanimity, a govern- 
ment truly based on the consent of the governed not for a moment, 
a month, or a year, but for unbroken centuries? 

Beginning in the seventeenth and eighteenth centuries, Indians bar- 
gaining over land sales won for themselves rights that white Americans 
would win many years or many decades afterwards the right to pro- 
tection in homesteads against forced sales and taxes, the right to free 
schools and vocational training, to free public health facilities; and 
the rights of public credit, social security (in the form of food and cloth- 
ing) against times of distress, and freedom from imprisonment for debt 



and other monstrosities of white man's law. And year after year, as- 
similationists have cried out in horror, asking the abolition of these 
peculiarities that "set the Indian apart," while year after year white 
men were winning similar advantages for themselves. The more white 
men take on of Indian political customs, the more important becomes 
the role of the Indian as a teacher, and the more grotesque becomes 
the stereotype of Indian degradation with its threadbare corollary that 
we who have civilized the Indian have earned the right to take his lands, 
minerals, timber, and fisheries in payment. 

Pure selfishness so rare a commodity would suggest that before we 
destroy the Indian and his way of life by seizing his last remaining 
resources, we should make sure that we have run through all the gifts 
of Indian agriculture, medicine, and sport. In the field of child care, for 
example, one of the great forward scientific movements at the present 
time takes off from the simple observation that Indian babies, brought 
up in traditional ways, rarely cry or stutter. Psychiatrists, pediatricians, 
and hospital administrators are now experimenting with substituting 
Indian methods of child training for the rigid schedules and formulas 
that have controlled the antiseptic babies of the last few decades. 

Life after all is a pretty complicated business. There is a good deal 
about it that none of us understands. Customs as horrible, at first sight, 
as burning weeds and inhaling the smoke sometimes turn out to have a 
universal appeal. None of us knows enough about the other fellow's 
way of life to have a right to wipe it out. We are not gods to make other 
men in our own image. Is it not in our own best selfish interest to let our 
fellow men plant their corn and cultivate it as they think best, while we 
watch and learn? When we have gathered the last golden grain of knowl- 
edge from the harvest of the Indian summer, then we can talk about 
Americanizing the Indian. Until then, we might do better to concentrate 
our attention on the real job of the New World, the job of Americanizing 
the white man. 


Indian Wardship: The Twilight of a Myth 

ONE of the oldest living legends in American life is the idea that Indians 
are not citizens. Behind this legend lie two popular fallacies: the idea that 
Indians are wards under the guardianship of the Great White Father, 
and the idea that a ward cannot be a citizen or, at least, cannot exercise 
the rights of citizenship. Both these ideas are mistaken. But popular 
stereotypes die hard. Wholesale grants of citizenship to Indians in the 
nineteenth century did not do away with the idea that Indians are 
not citizens. Even an act of Congress in 1924 expressly granting full 
citizenship to all remaining non-citizen Indians could not kill this legend. 
To this day most Americans have not yet adjusted to the fact of Indian 
citizenship. But while the legend of Indian wardship lives on in a sort 
of twilight shadow-world of popular opinion, the legend has faded very 
rapidly in recent years so far as the courts are concerned. 

During the past five years the question whether Indians are wards 
under federal guardianship has been squarely raised in a series of test 
cases, in which the general counsel of the Association on American 
Indian Affairs has participated. In each case the courts have held that 
Indians are not wards under guardianship, but on the contrary are full 
citizens of the United States and of the states wherein they reside, and 
are entitled to all the rights and privileges of citizenship. 

The first of these recent test cases arose in connection with Indian 
voting in Arizona. A 1928 decision of the Arizona Supreme Court had 
denied the franchise to reservation Indians on the ground that they were 
"persons under guardianship." Under the Constitution of Arizona "per- 
sons under guardianship" cannot vote. In 1948 a new test case was 
brought by Arizona Indians. On their behalf the argument was put 
forward that Indians as a class had never been placed under guardian- 
ship by any act of Congress or any court decision. Such being the case, 
popular talk or administrative declarations about wardship or guardian- 
Published in The American Indian, 1953. 



ship could not deprive an Indian citizen of his rights of citizenship. 
The Supreme Court of Arizona unanimously upheld our contention and 
reversed its so-year-old contrary ruling.* In one of the most important 
decisions ever rendered in the field of Indian affairs, Justice Levi Udall, 
for the Arizona Supreme Court, declared: 

No superintendent or other official or employee of the United 
States has custody of the person of the plaintiffs. They are not con- 
fined to the reservation and may leave it at any time they so desire. 
The plaintiffs are under no duty to follow the advice or instructions 
of any Federal officials in selecting a place to live. The power of the 
commissioner of Indian Affairs, or of the local superintendent, to 
decide what people might visit an Indian reservation and meet 
the Indians thereon was abolished in 1934. (48 Stat. 787) The plain- 
tiffs have full and untrammeled right to utilize their own property 
(except their interest in land or other property to which the Fed- 
eral government has a trustee's title) as they see fit and to receive 
and expend income therefrom without Federal interference. A cestui 
qui trust or beneficiary of a trust estate who is a white person does 
not thereby become a person "under guardianship." 

Judicial references to seamen as "wards of the government" are 
even more common than the references to Indians as "wards of the 
government/' Yet Arizona has never denied white or black seamen 
the right to vote as being "persons under guardianship." Similarly 
it may be noted that members of the armed services, federal em- 
ployees, veterans, and even beneficiaries or recipients of social secu- 
rity payments or other Federal payments have all been referred to 
loosely, from time to time, as "wards of the government/ 1 yet no 
one has had the temerity to suggest that such persons, when other- 
wise qualified, were ineligible to vote . . . 

We hold that the term "persons under guardianship" has no ap- 
plication to the plaintiffs or to the Federal status of Indians in 
Arizona as a class. 

The Arizona decision was followed a few weeks later by a similar 
decision of a three-judge federal constitutional court which upheld 
our position that the provision of the Constitution of New Mexico deny- 
ing the franchise to "Indians not taxed" was a racial discrimination 
invalid under the Fifteenth Amendment/)- Today Indians vote in all 
states of the union. 

*[Ed. note: Harrison v. Laveen, 67 Ariz. 337, 196 Pac. 2d 456 (1948)] 
f [Ed. note: Trujillo v. Garley (B.C., N.M., 1948, unreported)] 



Once the right to vote had been won, progress toward equality in 
social security and other public welfare payments became the next sub- 
ject for test litigation. 

Test litigation instituted by Indians of Arizona and New Mexico in 
1948 resulted in both these states adding Indians to their social security 
rolls, and today Indians are not excluded from the social security rolls 
of any state. 

Some counties, however, still refuse Indians relief out of state or local 
welfare funds. The legality of such discrimination was recently tested in 
the case of San Diego County, which refused to make welfare payments 
to reservation Indians, claiming that such persons were wards of the 
Federal Government. This claim was challenged by the Indians con- 
cerned, by the Attorney General of California, and by the Association on 
American Indian Affairs. The California Superior Court agreed with our 
contention that Indians are not under federal guardianship and that dis- 
crimination against reservation Indians in the distribution of county 
relief is illegal.* Judge Mundo's opinion comes squarely to grips with 
the guardianship argument and reaches this conclusion: 

In the briefs filed in the present case by the Attorney General of 
California and the General Counsel of the Association on American 
Indian Affairs, Inc., the contention is made that the Mission Indians 
of California are no more "wards" of the Federal government than a 
non-Indian war veteran who may be entitled to term insurance, 
home purchase assistance, educational and medical benefits, as well 
as burial expenses, and support and maintenance at a veteran's 
facility. They point out that the usual characteristics of a guardian 
and ward relationship are not present in the case of the California 
Indians . . . 

It is true that some of the earlier cases and textbooks refer to 
Indians as being wards of the United States, and it also is true 
that the inhabitants of certain Indian reservations have been con- 
sidered by the United States government as being under its pro- 
tection; but it is clear, however, that the Indians thus protected 
were not in a guardian-ward relationship, although in some in- 
stances some of the characteristics of such relationship existed 

The fact that laws are passed for the protection of seamen and 
Indians, as well as other classes of citizens, does not mean that they 
become wards in the true sense of the word, nor do these special 
enactments operate to impair other rights which they enjoy as 

* [Ed. note: Acosta v. County of San Diego, (Gal. D.C. App. 1954), 272 Pac. ad 9*] 



Latest of the test cases in which courts have been asked to decide 
whether Indians are wards or citizens is the suit brought by the State 
of Arizona against the Federal Security Administrator, Oveta Gulp 
Hobby, to compel approval of a social security program for joint federal- 
state payments to all cripples except those who have "Indian blood" and 
live "on Indian reservations/' The State of Arizona sought to defend 
its position with the traditional argument that Indians are persons under 
federal guardianship. This position was challenged by the Department 
of Justice and the Association of American Indian Affairs. The United 
States District Court for the District of Columbia rejected Arizona's 
contention and held that any discrimination against Indians in social 
security is forbidden by the Fourteenth Amendment to the Federal Con- 
stitution.* Accepting the logical consequences of this decision, the State 
of Arizona has announced that beginning April i, 1953, Indians will be 
treated exactly like their white and black neighbors in social security 
programs for the aged, the blind, and dependent children. The 1949 
compromise agreement under which the Bureau of Indian Affairs paid 
part of the social security bill for Indians in Arizona and New Mexico 
has now been terminated. 

So far as the courts are concerned, these decisions mark the final burial 
of the doctrine of Indian wardship. 

Outside of the courts, however, the legend is a still potent force for evil. 
Three powerful factors operate to keep this legend alive. 

In the first place, there is an ancient popular impression that because 
an Indian tribe is something less than a state, a member of a tribe is 
something less than a citizen. In its origin the doctrine of Indian ward- 
ship arose out of a misunderstanding of Chief Justice Marshall's holding, 
in 1831, that an Indian tribe was not a foreign nation but was rather 
a "domestic dependent nation," and that its position toward the United 
States resembles that of a ward to a guardian. This did not mean that an 
Indian tribe is a ward; even less did it mean that an individual Indian 
is a ward. But the opinion and several later opinions popularized the 
term wardship, and the term soon became a magic word in the mouths 
and proclamations of Indian agents and Indian Commissioners. Over 
the years, any order or command or sale or lease for which no justifica- 
tion could be found in any treaty or act of Congress came to be justified 
by such officials as an act of "guardianship," and every denial of civil, 
political, or economic rights to Indians came to be blamed on their 
alleged "wardship." Under the reign of these magic words nothing 
Indian was safe. The Indian's hair was cut, his dances were forbidden, 
his oil lands, timber lands, and grazing lands were disposed of, by 

* [Ed. note: Arizona v. Hobby, 221 F. (d) 498 (CA. & D.C., 1954)] 

S3 1 


Indian agents and Indian Commissioners for whom the magic word 
"wardship" always made up for any lack of statutory authority. Through 
constant repetition of that phrase by the persons having greatest influence 
in shaping public opinion, the idea of wardship under a Great White 
Father became firmly fixed in the popular imagination. The paternalistic 
attitude of Indian Bureau administrators during recent years has un- 
fortunately served to buttress that illusion. But it remains an illusion, 
unsupported by legal authority. 

Equally important as a support of the popular legend of Indian ward- 
ship is the fact of the existence of a Bureau of Indian Affairs. If Indians 
are legally not "wards/ 1 how can we explain the fact that the Federal 
Government maintains an Indian Bureau at a cost of more than 80 
million dollars a year? 

Perhaps the best way to answer this question is to ask: Are veterans 
wards of the Federal Government because Congress appropriates far 
more than 80 million dollars a year for veteran benefits? And what about 
our Women's Bureau and our Children's Bureau? Does the establishment 
of such bureaus make women and children wards of the Federal Govern- 
ment? If the Federal Government chooses to concentrate the perform- 
ance of certain public services in a given bureau, does that detract from 
the rights of the citizens whom the bureau is supposed to serve? 

Whether the Federal Government should attempt to funnel through 
the Bureau of Indian Affairs all sorts of public services in connection 
with schools, roads, and hospitals which other citizens receive from other 
agencies, federal or local, is a policy question beyond the scope of 
this discussion. Nor do we consider here whether the Federal Govern- 
ment, after promising various tax exemptions to Indians, is morally 
obligated to the states and counties which must open their schools and 
roads to non-taxpayers as well as to taxpayers. Whether we like it or not, 
the fact is that such subsidies to states and counties make up a very 
large part of the Indian Bureau budget. But how these services are 
financed and whether these services are administered by one agency or 
many has no bearing on the rights of citizenship of the beneficiaries. 
An alien may pay millions in taxes but he does not thereby acquire rights 
of citizenship. Nor does a citizen lose any rights of citizenship by owning 
tax-exempt bonds or tax-exempt land. 

Apart from the vested interests of thousands of Bureau employees in 
maintaining the prestige that floats about the word "guardianship" 
and the popular misunderstandings that cluster around the existence of 
an Indian Bureau, there is a third source of confusion that helps to main- 
tain the legend of Indian wardship. This is the tendency of non-lawyers 
to confuse two very different legal relationships trusteeship and guard- 



ianship. Guardianship is a relation that limits the personal rights of a 
ward. Trusteeship is a relation that limits the property rights of a 
trustee and makes the trustee the servant of the trust beneficiary. 

As a result of many treaties, statutes, and agreements, much Indian 
property, both tribal and individual, is held in trust by the United 
States. In the white man's business world, a "trust" is likely to be a 
property of great value; the trustee is required to protect the trust 
property and to turn over all the profits of the enterprise to the 
beneficiaries of the trust; the trustee has no control over the beneficiary's 
person. In the Indian's world, the same principles should apply; there is 
no legal basis for the common view that the Indian Bureau may deal 
with Indian trust property as if it were the owner thereof, or use such 
power over lands and funds to control Indian lives and thoughts. Un- 
fortunately, administrators often find it convenient to forget their duties, 
which are lumped under the legal term "trusteeship," and to concentrate 
attention on their powers, which go by the name of "guardianship." 

A long tradition of bureaucracy has a way of capturing the minds of 
even those administrators and Congressmen who want most heartily to 
see Indians enjoying all the rights of citizens. It is discouraging to see 
how quickly such opponents of paternalism and bureaucracy often suc- 
cumb to the maze of departmental arguments that convince them that 
Indians do not now have the ordinary rights of citizenship and that en- 
joyment of such rights by Indians must be postponed to a remote date in 
the future. Use of the word "eventually" marks the closing of the trap. 
When an official or a Congressman begins to talk about Indians "even- 
tually" having the rights of citizenship, one can be sure that he has fallen 
victim to the bureaucratic myth that Indians do not now have the 
rights of citizenship. Here as elsewhere lack of knowledge is a more 
potent support of injustice than is ill-will. 

It may be that the roots of our Indian wardship concept go even 
deeper into our national conscience. For in our hearts we know that 
Indians are not only our fellow-citizens; we know that our land was theirs 
before it was ours. Because we know that we never fully paid the Indians 
for what we received from them, we continue to salve our consciences 
by offering them hospitals, educational benefits, limited tax exemptions, 
and other aids to better living, just as we extend similar bounties to 
veterans whom we tore from their homes and careers and sent to fight our 
nation's wars. Whether we do these things pursuant to treaty promises or 
political campaign promises or simply out of a sense of moral decency, 
we have no moral right to use any such gifts as clubs with which to 
curtail the political or civic rights of our Indian fellow citizens. 

So long as the myth of Indian wardship persists, however, no benefit 



conferred upon any Indian, not even a million dollar judgment against 
the United States, will ever give the Indian freedom; on the contrary, 
such a judgment, turned over to the Indian Bureau to spend on new 
Bureau projects, may expand and perpetuate Indian Bureau control of 
Indian lives. For Indian litigation is the only litigation in the world 
where, if a plaintiff wins, the judgment in his favor is paid over to the 
defendant who loses in effect to the very Bureau that committed the 
wrong for which recovery is allowed. It is not enough, therefore, to have 
established machinery, as Congress has done, to award judgments or 
other benefits to Indian tribes for past wrongs. What is important is that 
the United States pay its debts to the Indian not to the Indian Bureau. 
When this is done, the relation of our nation to its first inhabitants 
will no longer be tainted with the poisons of charity, condescension, dis- 
crimination, and resentment. Until the ghost of Indian wardship is laid, 
every benefit conferred on Indians may carry with it the curse of dis- 

Once the standard confusions that cluster about words like "ward- 
ship" and "guardianship" have been wiped away, it is plain to see that 
Indians are not second-class citizens; they are not wards; they are not 
under guardianship; they are entitled to the enjoyment of all the rights 
of other citizens, not eventually but now. Whether Indians will in fact 
be treated by their neighbors and their public servants as first class 
citizens will depend upon the success of Indians and their friends in 
dispelling the lingering legend of wardship. That legend will finally be 
buried when we begin to challenge every assertion of special authority 
over Indian lives and Indian property. 

Every administrative assertion of a power over Indians which does 
not exist over non-Indians deserves to be vigorously scrutinized. If the 
claim is not backed up by Congressional legislation, it is generally safe 
to conclude that the claim is legally invalid and should be rejected. 
If it is backed by legislation, the only safe conclusion is that the legis- 
lation should be repealed. And if the Congressional legislation which 
would confirm or establish some special authority to rule and regulate 
Indian life or dispose of Indian property in ways not applicable to non- 
Indians has not yet been passed, the only safe conclusion is that it should 
not be passed. This is particularly worth remembering when bills con- 
ferring vast new "temporary" powers on Bureau officials are ornamented 
by high-sounding terms like "withdrawal" and "emancipation." 


The Philosophy of American Democracy 

The Socialization of Morality 


It was the peculiar fate of my generation to be born into a world of 
collapsing faiths. The years of the War and the years after played havoc 
with the dreams of many centuries. Hopes which had fulfilled the lives 
of intelligent men and women became heaps of dust. The vision of 
Progress through Science came to reek with the stench of gunpowder 
and poison gas. Men's faith in the permanent values of philosophy and 
religion could not survive undimmed the spectacle of philosophers and 
chaplains cursing each other across the lines of battle. Hopes of securing 
a better world through trade union organization, woman suffrage, or 
political reform, hopes which had informed many useful lives, were 
silently abandoned and won few new champions. Traditional American 
faiths in Temperance, in Democracy, and even in Personal Success, never 
took hold of the hearts that were molded in the years of the War. Even 
the ideal of patriotism came to seem a hollow sham in a war fought 
by conscript armies and financed by Big Business on a basis of three and 
one-half per cent interest compounded quarterly. 

This is not to say that the War actually destroyed vital growths of 
the human spirit. Rather it probed ideals and movements that had been 
long afflicted with internal decay. It revealed the hollowness of the 
moral ideals of past centuries, and it left all contemporary faiths weaker 
so that an acute critic of literature could say, a few years ago, that 
tragedy was no longer possible in our age because we had lost all belief 
in ultimate values. 1 

Loss of faith in traditional moral values found varied expression. A 
widely professed belief in "tolerance" or "freedom/* centering in this 
country about the natural right to get drunk, proceeded from the 
premise, "There are no certain moral principles/' to the conclusion, 

i. Krutch, The Modern Temper (1929), chap. 5. 

Chapter in American Philosophy Today and Tomorrow, ed. by Horace M. Kallen 
and Sidney Hook, 1935. 



"It is wrong for us to impose standards upon other individuals/' and 
thus attempted to derive a moral code from the fact of moral ignorance. 
Popular exploitations of anthropology, psychology, and psychoanalysis 
offered cumulative reassurance to those who felt it necessary to regard 
moral standards as products of superstition, conspiracy, indigestion, or 
sexual aberration, and even Einstein's theory of relativity came to be 
popularly regarded as mathematical evidence for the proposition that 
every moral belief is as good as any other moral belief. Our pervasive 
distrust of our own lingering beliefs produced the peculiar educational 
dogma that teachers (other than teachers of education) should not teach 
facts or doctrines but should rather permit students to develop "from 
within" and to think "independently." Above all, the loss of faith in 
traditional moral values led to intensified revolt against any assertion of 
moral or social responsibility, in every craft and art of modern life from 
the writing of poetry to the manufacture of munitions. 

None of these tendencies of the postwar years was new. Each is 
readily traced back a century or more. But each has reached a point of 
new intensity in the last two decades. 

Here is the problem, here the setting, of a new philosophy of values, 
a new morality, to be molded in the two or three decades before us. 
For one thing is certain, that no civilization can endure which distrusts 
its moral foundations as profoundly as we have come to distrust the 
ideals that order our social existence. No society can long exist in which 
the disintegrating forces of class interests and class rivalries, economic, 
racial, and national, find no other court of appeal than the field of 
violent struggle. It is true, no doubt, as the communists urge, that the 
bitterness of national and racial hatred may be overcome by an in- 
tensification of the class struggle, leading to the international consolida- 
tion of opposing forces of labor and capital. It is equally true, as the 
fascists have shown, that economic and political conflicts within a nation 
may be silenced by an intensification of national and racial hatred. But 
the substitution of one hatred for another offers no permanent basis of 
peace in an interdependent world. The suicide of our civilization can 
be prevented only by the discovery of a new pattern upon which its life 
can be integrated, a new synthesis of conflicting human desires. 

One hesitates to assign this vital task to the province of ethics or 
morality. For recent centuries of philosophical discussion have endowed 
the words "ethical" and "moral" with a milk-and-watery flavor and an 
odor of Sunday School sanctity. To speak of a "moral" man, a "good" 
woman, or an "ethical" druggist is to say very little about human values. 
Preoccupation with "moral" problems is commonly regarded as psycho- 



pathic in adults. Economists, judges, and artists, alike, are quick to resent 
the suggestion that moral questions exist in their several fields of 
endeavor. Yet the critique of a society's ideals and standards is in- 
evitably a moral problem, a problem reaching to the ultimate values of 
human life, and one cannot even outline the task of transvaluation with- 
out in some measure appraising the strength and weakness of traditional 
moral theory. 

If the substance of traditional moral theory offers only faltering or 
irrelevant answers to the problems of conduct that the modern world 
poses, this is not because problems of social existence have become 
unmoral, but rather because moralists have become unsocial. 

Moral theory in the western world of the last two or three centuries 
has been dominated by the tradition of individualism, largely drawn 
from the precepts of the New Testament and the economic and political 
ethics of Protestantism, spiced with the worldly observation of men 
like Machiavelli and Mandeville, and attaining its purest philosophical 
formulation and reductio ad absurdum in the Kantian doctrine which 
denies the existence of moral problems in the sensible world, and reduces 
morality to a logical postulate devoid of social content. 2 

The morality of the individualist tradition is a morality of peculiar 
narrowness, being addressed almost entirely to the moral problems of 
persons who have nothing important to do. For children and slaves, 
the only significant questions of conduct arise in situations of intimate 
personal relationship, and it is in this restricted context that the prob- 
lems of temptation, sin, sex, love, manners, proprietary and intellectual 
honesty, selfishness and discipline are treated by moral philosophers. 
Moral philosophers have had little to say about such matters as peace 
and war, the distribution and the use of economic power and political 
force, the functions of scientific thought, of education, and of artistic 
endeavor, the changing substance of cultures, and the physical conditions 
of existence. 3 These are matters which, although they do not present 
problems of conduct to children or slaves, do present problems of 
conduct to legislators, voters, artists, scientists, businessmen, workers, 
philosophers, teachers, revolutionists, judges, and other individuals who 
exercise power over human lives. And the patterns of life even of 

2. I do not mean to suggest that Kant was a consistent Kantian. I have elsewhere 
indicated some of the empirical social assumptions that characterize his legal philoso- 
phy. See Ethical Systems and Legal Ideals (1933), pp. 107-08. 

3. It is hardly necessary to mention that such philosophers as Perry, Dewey, Parker, 
and Laird have, in recent years, launched a forthright attack upon the provincialism 
of traditional moral theory. 



children and slaves are very profoundly affected by the answers that are 
given to such problems. 

The poverty of modern moral theory is apparent if we contrast with 
the content of contemporary morality such moral codes as are embodied 
in the writings of the Pentateuch, in the dialogues of Plato, or in the 
scholastic summas. Each of these historic codes makes a resolute and 
straightforward attempt to deal with all the basic problems of human 
conduct that a given civilization proposes. Each of these codes seeks to 
define the place and function of the artist, the property-owner, the 
teacher, and the ruler. In none of these codes is an attempt made to 
justify modes of conduct fraught with human joy or suffering, after the 
manner of modern moralists, by assigning the subject to a "non-moral" 
realm of art, science, industry, or statesmanship and refusing to discuss it. 

It would seem that modern moralists have suffered a loss of nerve. 
A monarch fearful of revolt may secure absolute obedience by com- 
manding his subjects to do as they please. Modern ethics asserts its 
sovereignty by issuing to the owners of property the unbreakable com- 
mandment, Laissez faire. Nor is the morality of laissez faire restricted to 
economic realms. So weak is the empire of contemporary ethical theory 
that it must needs grant autonomy or near-autonomy not only to the 
businessman, but as well to the artist, the scientist, the educator, and the 
statesman in fashioning ideals of right and wrong within the various 
provinces of human activity. Ideals thus fashioned are class ideals, re- 
flecting the narrow interests of professional groups. The ideals of modern 
art reflect primarily the artist's appreciation of the technical difficulties 
presented by certain materials and of the skill exhibited in their con- 
quest, rather than a concern with the significance and value of human 
experiences evoked by the artistic creation. The success of economic 
enterprise is measured by the standard of entrepreneur's profit (even 
when, as in the case of certain public enterprises, the entrepreneur is 
trying not to make a profit), rather than by an appraisal of the cost of 
human energy and sacrifice that the enterprise demands and the value 
of the human interests it serves. Law finds in its own hallowed past and 
in the aesthetic harmonies of the legal system itself the touchstones of 
criticism which a comprehensive social morality once provided. 4 And 
each profession in modern society has its own code of ethics which is 
primarily designed to lend respectability to the vested interests of the 

4. I have elsewhere attempted to analyze the logical difficulties which this narrow 
conception of ethics imposes upon law and the social sciences. See Ethical Systems 
and Legal Ideals, (1933). The major thesis of this volume is restated, in words of one 
and two syllables, in "Modern Ethics and the Law" [above, p. 17]. 



profession and to protect its members from the just claims of society. 
The gradual abandonment by moral theory of its significant social 
content has roots deep in the material and intellectual foundations of 
our civilization. Chief among the factors which have contributed to the 
deserialization of morality must be listed the growing complexity of 
industrial civilization, the accelerated rate of social change, and the 
submergence of human personalities before the impersonal institutional 
forces of modern society. 

The Complexity of the Moral Scene 

It is natural that the vast complexity of modern life should lead men to 
believe that the vision of an integrated social morality is an anachronism 
in contemporary civilization. Such, at least, is the belief of those moral- 
ists who have remained loyal to the philosophical ideal of wholeness, 
and in this loyalty have retreated, step by step, from the realms of 
human conduct that bear most deeply the imprints of our complex 
social structure. Such, too, is the belief of those who have been faithful 
to the moral realities of new and complex social situations and in this 
faith have abandoned the philosophical effort to systematize specific 
prescriptions for specific social ills. 

The complexity of a social system, which engenders intellectual 
difficulties for the moral philosopher, operates more directly upon the 
springs of moral feeling. The complexity of urban life is revealed in 
increasingly minute specialization of human activities. The moral signifi- 
cance of the self-supporting farmer's task is clear, the moral values of 
success and failure are vivid, and the personal relationships to which 
the task gives rise are simple and direct. So with the task of the petty 
artisan or the family physician. The moral overtones of action are less 
clear to the mill-worker, the seed salesman, the stockholder of an in- 
dustrial corporation, the nose and throat specialist, or the uniformed 
orderly of a great hospital. 

Increasing division of labor, which marks the growth of civilization, 
destroys not only the traditional moral patterns of individuals' working 
lives but as well the communities of experience out of which moral 
attitudes grow. Morality is a function of uniformity. Envy and contempt, 
rivalry and emulation, sympathy and antipathy, praise and blame, pre- 
suppose a community of interest and experience. Those whose lives are 
spent in unrelated occupations meet in a meager community, and the 
shrinking of morality to rules of sportsmanship and good manners, in 
certain social groups, testifies to this meagerness. Increasingly the stand- 


ards which demand men's effective allegiance are standards reflecting the 
special interests of small homogeneous occupational groups rather than 
the interests of a whole society. 

Morality and the Tempo of Industrialism 

If morality is, in general, dependent upon uniformity, it is peculiarly 
dependent upon temporal uniformity. Just as uniformity of social posi- 
tion or occupation leads to the compulsive attraction of the "normal" 
or "natural," so uniformity in time lends the force of tradition, reverence, 
and loyalty to moral beliefs. This is not simply a consequence of super- 
stition and inertia. Time is required for the analysis and verification of 
moral beliefs. 

The morality of any age, then, is likely to be most firmly fixed in 
those realms of life which are least affected by social change. 

The simple, enduring problems of personal relationship maintain 
moral grandeur while changing historical conditions seem to make 
questions of economic, political, or cultural policy ephemeral. The 
prestige of an historic tradition can attach only to those beliefs that we 
share with a remote past. Unfortunately the scale of moral problems 
and the required range of moral vision have been comparatively narrow 
in the simpler societies from which we derive our moral traditions. Jesus 
will bring back to life a poor unfortunate whose death has come to his 
attention, but it would be entirely inconsistent with the biblical Jesus 
to expect him to bring back to life a large number of people who have 
died in a village he has not visited, or to prevent the death of a 
large number of children by teaching people how to pasteurize milk. To 
the extent that modern ethics is affected by the tradition of Jesus, there- 
fore, it tends to consider larger social problems as unimportant and 
unreal, and to focus moral criticism upon the personal behavior of 
individuals rather than upon social institutions. Moral aspects of the 
economic order are dismissed as Jesus dismisses the indignant protests 
of his disciples when a woman anoints his head with a costly perfume. 
To the objection that for the price of the perfume a multitude of the 
poor might have been fed, Jesus gives the characteristic individualist 
answer: "ye have the poor always with you, and whensoever ye will ye 
can do them good; but me ye have not always." 5 
5. Mark 14:7. 



Morality and Slavery 

Most people, no doubt, are uninterested in broad social questions be- 
cause they have no voice in the decision of such questions. Interest 
would be misplaced energy. A slave class will not develop an ethics 
relevant to the problems of social policy which its masters face. 

Instructive is the appeal which the morality of primitive Christianity 
made to a people without political power. Distinguished from the earlier 
Jewish morality, with its detailed analysis of social and economic re- 
lationships, primitive Christianity made a virtue o the necessity under 
which its audience labored to take no thought for the morrow, and to 
render unto Caesar that which was Caesar's. To the extent that people 
today feel impotent in the realm of social affairs they are ready to 
accept the narrow limitations of a moral code that ignores the funda- 
mental problems of government, economics, and culture. And this feel- 
ing of impotence is almost universal in contemporary society, not only 
in the ranks of the oppressed, but even among the rulers of society, who 
are themselves the puppets of collective forces they cannot understand. 
Increasingly the significant questions of modern life seem to be decided 
not by human beings but by machines and institutions and impersonal 
economic laws that wreak their will upon an enslaved human race. 


The task of modern ethics would be hopeless indeed did not the very 
forces which have destroyed the morality of individualism provide the 
basis of a new integration of human interests. Neither the complexity of 
modern civilization, nor the rapidity of its material transformations, nor 
the shifting of significant human choices from a personal sphere to a 
collective sphere, obstructs the way to a socialized morality. Rather each 
of these factors in the disintegration of traditional morality presents 
itself as a material element in the reconstruction of moral theory. 

The Simplification of a Social Order 

The belief that a universal morality can arise only out of a simpler 
society than our own is a half truth. What makes a society simple is a 
moral theory. The complexity of modern society is not an objective 
fact. Complexity is always relative to the starting point of analysis. 
The description of planetary movements was an extremely complex 



affair when the earth was used as the point of reference, and became 
increasingly complex as observations became more accurate, but the 
complexity vanished with the substitution of the sun as a point of 
reference. Modern civilization is oppressive in its complexity if we con- 
ceive its movements in terms of individual liberties, individual duties, 
and individual personalities. It may come to seem a rather simple affair 
when analyzed in terms of social functions. 

The complex specialization of human activities ceases to be a divisive 
force in the social structure when specialized functions are coordinated 
in a great social effort. Politicians, artists, and steel workers may have 
little of importance to say to each other in the nations of the West. 
That is not true in Soviet Russia. 

The coordination of diverse social functions in an integrated moral 
order informs each vocation of civilized life with a social ideal and 
a clarified moral task. Specialization ceases to be an escape from the 
domain of morality; it may become a condition of social usefulness. In 
a collective morality there is more room for specialization, for variation 
from common norms, for the development of rare human potentialities, 
than there can be within an individualistic morality, just as there is 
greater scope for diverse talents in the collectivity of a baseball team 
than in a field of nine runners. 

Nothing, then, could be further from the truth than the spectre of 
men emerging into standardized robots under a socialist order of society. 
Social harmony no more requires that each individual play a simple tune, 
much less the same tune, than does orchestral harmony. The robot today 
is the product of an individualist morality that impoverishes the human 
spirit by denying it participation in the vital collective forces of modern 
civilization. Genius is achieved not by Robinson Crusoes fired with the 
individualistic passion for self-sufficiency, but by men who can rely upon 
their fellows to perform tasks for which they are not fitted and are thus 
freed and helped to fashion rare gifts. Heretofore such social cooperation 
as genius demands has been assured only by the natural communism 
of a harmonious family life or by the fortuitous favor of society's rulers. 
A socialist society makes universal the material security which the 
flowering of the human spirit requires as a condition of existence. It 
destroys the adventure of men's uncertain search for food, and destroys 
as well the individual initiative that finds expression in the course of self- 
aggrandizement, but it destroys these things to make room for a higher 
adventure and a wider initiative. 



Moral Sanctions in a Changing Society 

The shadow of transitoriness which changing material conditions cast 
over the established traditions of morality is as subjective as is the appear- 
ance of complexity in our social order. Indeed, change is no more than 
complexity along the dimension of time. 

Change is disconcerting only where there is no goal. The loss of 
moral moorings which early capitalist industrialism brought to the 
nations of the West, exemplified in such movements of despair as the 
machine-wrecking of the Luddites and the more sophisticated glorifica- 
tion of the escape to the primitive, stands in sharp contrast to the 
purposeful industrialization of Russia under Soviet rule. Material 
change, far from being a disruptive force, may itself become the stable 
axis of a morality oriented to the dynamic forces of industrial civiliza- 
tion. If revolutionary changes in the material bases of life make the 
moral traditions of the past irrelevant to the contemporary world, these 
changes, come to consciousness, create a revolutionary morality that is 
not dependent upon the sanctions of precedent and inertia, that finds 
adventure, hope, and faith in every essential break with an outworn past. 

Morality and Power 

Finally, the increased range and scope of moral problems in the modern 
world, which seems to rob the individual of power and responsibility, 
itself creates the basis of a new integration of human values. The ap- 
parent impersonality of the forces that mold contemporary civilization 
reflects only the meagerness of personalities integrated by an individual- 
istic formula. This poverty of personality is itself overcome by a more 
comprehensive social morality. Such a morality substitutes for the in- 
dividualistic defense of man against society the Aristotelean thesis that 
man finds the completion of his personality in society. Only in so far 
as man consciously identifies his powers with wider social forces, and 
participates in the responsibilities, the purposes, and the achievements 
of society, does he lay valid claim to the values of civilization. 

The sense of moral impotence in the presence of overwhelming social 
problems derives from the attempt to attack these problems with the 
weapons of a narrow personal morality. Personal kindliness, however 
adequate to adjust the relations between a master and a domestic slave, 
is pathetically inadequate in the relationship between an industrial 
corporation and its employees. To that relationship morality can be 



relevant only if morality incorporates the social organization of knowl- 
edge, which is science, and the social organization of human powers and 
purposes, which is politics. 

Socialism, as the fulfillment of democracy, offers all men the power 
out of which moral responsibility is born. It lifts this power and this 
responsibility from fields which become increasingly trivial to the 
heights of self-conscious control over society's destinies. It shifts the focus 
of moral values from traditional problems of retail charity and retail 
murder, courtesy and sexual decency, personal thrift and prudence, to 
the long-range problems of peace and war, the organization of industry 
and government, the growth of science and culture, and the material 
conditions of human existence. Redefining the moral virtues and vices, 
it replaces the heroes, saints, and gods of the past with new exemplars 
of the good life, as in Russia, for instance, the figure of Christ, who 
deals with all things in an intimate and personal way, has been re- 
placed by the figure of Lenin, the exponent of statistical morality. Cre- 
ating new moral forces to govern the institutions of industrial civiliza- 
tion, socialism sublimates the passion of personal envy to the passion for 
social justice, turns human pride from the vision of personal success to 
the vision of collective achievement, and endows the ideal of universal 
brotherhood with the warmth of personal friendship. Out of the pettiness 
of personal fear there may be distilled hatred of the forces of despotism, 
love of liberty, and courage for battle. The triviality of human effort is 
man's fate only in a planless world. In the collective integrations of 
socialist society, and in the struggle for a socialist society, human power 
and human dignity are reborn. 


Analytically the distinction between individualist and socialist morality 
lies in the unit of integration applied to conflicts of human interests. 
Individualism assumes the task of integrating the conflicting desires of 
a person into a harmonious pattern of satisfactory living, through the 
disciplined subordination of momentary impulses to more permanent 
purposes, through the enlightenment of selfishness, and through the 
cultivation of a concern for one's future that eliminates the occasions of 
regret for one's past. The terms of this integration remorse, temptation, 
conscience, sincerity, self-respect do not stretch beyond the individual 
life. Traditional morality assumes that a life so integrated is necessarily 
socially valuable, and it is on the basis of this assumption that individ- 
ualism ignores or minimizes the role of social control and the scope 



of social responsibility and sanctifies selfishness if only it is "enlightened." 
This assumption may be roughly true within a social structure in which 
an individual's conduct is comparatively unimportant to his fellows 
or in which human equality and the simplicity of human relations make 
the Golden Rule a dictate of practical prudence. But as the material con- 
ditions of life lend increased importance to the influences of individual 
conduct upon other individuals and cast these influences in forms that do 
not permit of payment in kind, it ceases to be a matter of practical pru- 
dence to act as one would have others act. Indeed in a society of 
specialized functions this ceases even to be a meaningful possibility. It 
becomes increasingly obvious in the contemporary world that the in- 
dividualist moral values of consistency, prudence, courage, and en- 
lightened selfishness do not guarantee a life of social value. Self-mastery 
attained through these traditional virtues may turn a life that is inspired 
by class or racial hatreds into a tragic catastrophe for the human race. 
The moral significance of human conduct comes increasingly to demand 
social standards of measurement. 

Traditional individualism denies not only the need of a social integra- 
tion of human interests but the possibility of such an integration. It 
assumes that the calculus of prudence is not only a major part of virtue 
but an eternal and objective fact. This assumption can scarcely with- 
stand the analysis of psychological and anthropological science. En- 
lightened selfishness, far from being a matter of instinct, is instilled in 
human beings only through an arduous process of education dominated 
by the moral imperatives of individualism. The untrained child, no 
less than the martyr, the soldier, or the animal defending its young, may 
sacrifice its own future advantage to another's urgent need. Calculating 
selfishness is a product of individualistic morality. In a socialized 
morality which submerges individual purposes in more comprehensive 
social ideals, the significance of the whole concept of selfishness vanishes. 

The traditional philosophy of individualism defends the immutability 
of human selfishness by a metaphysical dogma rather than by any con- 
vincing scientific evidence. The dogma that the individual is an ultimate 
unity and society an ultimate plurality predetermines that all the 
adjustments, balances, and compromises which are the substance of 
morality must take place within an individual life, that, for instance, 
the socially ordained sacrifice of one man's life or property for the 
benefit of others is unjust, though the individually ordained sacrifice of 
today's pleasure for tomorrow's, within a single life, may be commend- 

To this metaphysical dogma, the philosophy of socialism opposes a 



wider perspective, which reveals something of the unity of the individual 
in society itself and something of the plurality of society in the in- 
dividual life. 

Every human life may be viewed as a society of moments, each 
moment with its distinctive focus of interests, each with capacities for 
hating, loving, or disregarding other moments interconnected by physi- 
cal relationships that do not guarantee a harmonious integration of 
interests, and attaining that integration only through adherence to norms 
of personal conduct that are the fruit of hard-won human wisdom. 
Loyalty to an ideal or pattern of life distinguishes an individual, a 
character, from a temporal succession of human activities related only 
by the fact that they occur in a single biological organism. The possi- 
bility of a social integration of conflicting interests is substantiated by 
the integration of conflicting interests in an individual life. 

The power of an individual, that is to say his ability to retain his 
integrity under pressure and to exert pressure in turn to mold other 
lives, depends upon the effectiveness of the moral integration which 
subordinates successive immediate interests or desires to long-range pur- 
poses. It is equally true that the strength of a society derives from 
the moral integration of the diverse interests of many individuals, and it 
is becoming increasingly clear that a social order which does not secure 
such internal harmony must sooner or later give way to a more com- 
plete, stable, and effective integration of human desires. 

The development of a socialized morality is therefore more than an 
ethical desideratum. It is a practical postulate of the continuance of 
modern civilization. The needs of civilization impose upon contempo- 
rary moral philosophy the task of integrating the life of society as tra- 
ditional morality has integrated the lives of individuals. Ultimately a 
universal or social morality can rest only on a classless culture and a 
socialized conscience. The task of laughing down the provincialities of 
contemporary class culture, of breaking the control of art by monopolistic 
groups, of liberating taste and enjoyment from the slavery of pecuniary 
and competitive canons, of exposing the provincial ethical assumptions 
that bar the road to useful thought in the fields of economics, juris- 
prudence, and sociology, of liberating human imaginations so that men 
may see through complex economic and political structures to the joy 
or suffering they create, of dramatizing the institutions of society so that 
they evoke the forces of love and hate which have been traditionally 
directed towards personalities, of widening human loyalties to the point 
where one may look to his own future impersonally and find in a social 
ideal inspiring patterns of life, these are not tasks for the Sunday 



School moralists of the individualist tradition. In these tasks every 
realm of human culture must make its revolutionary contribution. 

To speak thus of socialization in terms of the human soul is not to 
deny the physical actualities of technological evolution and class strug- 
gle, but only to deny the claim that irrational forces monopolize 
reality. It seems to me more useful and more nearly true to view the 
socialization of institutions and the socialization of the human soul as 
parallel aspects of a single task. For in the last analysis the human soul 
is neither the master nor the slave of its environment. The human soul 
is its environment, seen from within. 


Government and the Social Contract: 
Ethical Evaluations in the Law 

AN INCREASING number of law school students will be entering the legal 
service of federal, state, or local governments on graduation. The ex- 
pansion of government legal services is, I believe, not a result of any 
particular administration or any temporary economic depression. The 
expansion of government is a product of the same technological forces 
that result in the expansion of our large corporations. Government must 
expand when financial and industrial institutions expand because govern- 
ment ceases to be government when any other organization is larger 
than the government. And so I think that the younger generation of 
lawyers is going to have more to do with government law and govern- 
ment procedure than its teacher had. Those young lawyers who are not 
actually in government service will be running into government con- 
tracts, licenses, administrative hearings, and so on, to an ever increasing 
extent, and in all this work it will be keenly important whether or not 
they "see the woods for the trees/' whether they lose heart when the 
trail seems to go in the wrong direction, or whether they know that it 
turns to detour around a swamp. 

There are, of course, a good many theories about the nature of govern- 
ment that seek to illuminate the details of actual government, and I 
shall not go into a boring catalogue of these rival theories. It is not 
necessary to kill off all conflicting theories in order to prove the virtue 
of the social contract theory of government. Within a limited field, two 
inconsistent theories can be true. 

There is a group of stars that certain peoples have looked upon as a 
Great Dipper. Others have seen in these stars a bear, and still other 
peoples have seen an old woman with a broken back. These theories are 
absolutely inconsistent. Nothing can possibly be at one and the same time 

The major part of this paper was delivered as a lecture at the Eastern Law Students 
Conference, at the New York University School of Law, 1936, Prof. Elliott E. Cheatham, 



a dipper, a bear, and a woman with a broken back. Yet each of these 
theories, each of these pictures, serves equally well to group certain 
stars in a useful recognizable way from which it is possible to calculate 
directions if one happens to be in the middle of a lake on a moonless 

So one will frequently find that inconsistent legal theories are equally 
true as applied to a limited set of concrete situations. I shall claim no 
more than this for the theory of the social contract: That it does 
illuminate a large part of the everyday business of government. The 
social contract theory presents government as a process of bargaining, 
a process of give and take, a process in which service is exchanged for 
loyalty, a process in which statesmanship is an ability to find a basis of 
compromise and mutual agreement in a situation which seems to be a 
welter of irreconcilable views and desires. 

This picture of government differs measurably from two other current 
pictures of government. One of these is the picture of government as a 
policeman. Government gives orders. Subjects obey or disobey. Those 
who disobey may or may not be punished. The orders of the policeman 
are, in a democratic state, the will of the majority. This picture of the 
sovereign state is a very useful one for certain purposes, but it fails 
utterly to explain the diversities within government. It fails to explain 
divergences between legislative, executive, and judicial branches of 
government, between different bodies, departments, divisions, bureaus, 
committees, and officers within these bodies. The theory of the sovereign 
state imports an artificial unity into the conception of government. It 
does not do justice to the fact that government is a microcosm which 
reflects all the divergent forces of the society outside, not only the will 
of the majority but the will of many overlapping and conflicting minor- 
ities, each of which finds a spokesman in some governmental agency. 

There is a second popular picture of the state with which I should 
like to contrast the social contract picture, and that is the very popular 
picture of the state as a disease. That is a very ancient and respectable 
theory in this country. The word "politics" has a bad smell; the word 
"politician" is even worse. The trouble with America is: We have too 
many laws. Government must be circumscribed because it is conta